As
filed
with the U.S. Securities and Exchange Commission on May 12, 2008
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
_________________
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
_________
Sunesis
Pharmaceuticals, Inc.
(Exact
name of Registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation
or organization)
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94-3295878
(I.R.S.
Employer
Identification
No.)
|
__________________
341
Oyster Point Boulevard
South
San Francisco, California 94080
(650)
266-3500
(Address
of Principal Executive Offices including Zip Code)
2005
Equity Incentive Award Plan
Amended
and Restated 2006 Employment Commencement Incentive Plan
Employee
Stock Purchase Plan
(Full
title of the plans)
________________
Daniel
N. Swisher, Jr.
President
and Chief Executive Officer
341
Oyster Point Boulevard
South
San Francisco, California 94080
(650)
266-3500
(Name
and
address, including zip code, and telephone number, including area code, of
agent
for service)
|
Copies
to:
Suzanne
Sawochka Hooper, Esq.
Nicole
C. Brookshire, Esq.
Cooley
Godward Kronish
LLP
Five
Palo Alto Square
3000
El Camino Real
Palo
Alto, CA 94306-2155
(650)
843-5000
|
Indicate
by a check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”, “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer
¨
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Accelerated
filer
ý
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Non-accelerated
filer
¨
(Do not check if a smaller reporting company)
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Smaller
reporting company
¨
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per Share (2)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount
of
Registration
Fee (3)
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|
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Common
Stock, par value
$0.0001
per share
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1,307,352
shares
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$1.55
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$2,026,395.60
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$79.64
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(1)
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Pursuant to Rule 416(a) of the Securities
Act
of 1933, as amended (the “Securities Act”), this Registration Statement
shall also cover any additional shares of the Registrant’s Common Stock
that become issuable under the 2005 Equity Incentive Award Plan, Amended
and Restated 2006 Employment Commencement Incentive Plan and Employee
Stock Purchase Plan as set forth herein by reason of any stock dividend,
stock split, recapitalization or other similar transaction effected
without receipt of consideration that increases the number of outstanding
shares of the Registrant’s Common Stock. In addition, pursuant to Rule
416(c) under the Securities Act, this Registration Statement also covers
an indeterminate amount of interests to be offered or sold pursuant
to the
employee and non-employee benefit plans described herein.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration
fee
pursuant to Rule 457(h) and
Rule 457(c)
promulgated
under the Securities Act. The offering price per share and the aggregate
offering price are based upon the average of the high and low prices
of
the Registrant’s Common Stock as reported on the NASDAQ Global Market on
May 8, 2008, in accordance with Rule 457(c) of the Securities
Act.
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(3)
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The chart below details the calculation
of
the registration fee:
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Number
of
Shares
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Offering
Price
Per
Share
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Aggregate Offering
Price
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Title
of Securities to be Registered
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Common
Stock, par value $0.001 per share, reserved for future issuance under
the
2005 Equity Incentive Award Plan
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1,082,352
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$1.55
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$1,677,645.60
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Common
Stock, par value $0.001 per share, reserved for future issuance under
the
Amended and Restated 2006 Employment Commencement Incentive
Plan
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125,000
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$1.55
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$193,750.00
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Common
Stock, par value $0.001 per share, reserved for future issuance under
the
Employee Stock Purchase Plan
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100,000
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$1.55
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$155,000.00
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Total
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1,307,352
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$2,026,395.60
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Registration
Fee
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$79.64
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The
Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Act.
EXPLANATORY
NOTE
This
Registration Statement is being filed for the purpose of increasing the number
of securities of the same class as other securities for which a Registration
Statement on Form S-8 of the Registrant relating to the same employee and
non-employee benefit plans set forth herein are effective.
INCORPORATION
BY REFERENCE OF CONTENTS OF REGISTRATION
STATEMENT
ON FORM S-8
Registrant’s
Form S-8 Registration Statement filed with the U.S. Securities and Exchange
Commission (the “Commission”) on September 28, 2005 (File No. 333-128647) and
November 16, 2006 (File No. 333-138758) relating to the Registrant’s 2005 Equity
Incentive Award Plan and Employee Stock Purchase Plan, on March 24, 2006 (File
No. 333-132679) relating to the Registrant’s Amended and Restated 2006
Employment Commencement Incentive Plan, and on August 13, 2007 (File No.
333-145404) relating to the Registrant’s 2005 Equity Incentive Award Plan,
Employee Stock Purchase Plan and Amended and Restated 2006 Employment
Commencement Incentive Plan, are each incorporated herein by reference and
made
a part hereof.
EXHIBITS
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Exhibit
No.
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Description
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3.1
(1)
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Amended
and Restated Certificate of Incorporation of the
Registrant.
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3.2
(2)
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Amended
and Restated Bylaws of the Registrant.
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4.1
(3)
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Specimen
Common Stock Certificate of the Registrant.
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4.2
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Reference
is made to Exhibits 3.1 through 3.2 above.
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5.1
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Opinion
of Cooley Godward Kronish
LLP
.
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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 Cooley Godward Kronish
LLP
(included in Exhibit 5.1).
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24.1
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Power
of Attorney. Reference is made to the signature page of this Registration
Statement.
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99.1
(4)
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2005
Equity Incentive Award Plan, as amended, and Form of Stock Option
Agreement.
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99.2
(5)
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Amended
and Restated 2006 Employment Incentive Commencement
Plan.
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99.3
(6)
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Employee
Stock Purchase Plan and Enrollment
Form.
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________________
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(1)
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Previously
filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K/A, for
the year ended December 31, 2006, filed with the Commission on
May 23,
2007 and incorporated by reference herein.
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(2)
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Previously
filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed
with the Commission on December 11, 2007 and incorporated by reference
herein.
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(3)
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Previously
filed as Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-1 (File No. 333-121646), as amended, originally filed
with the Commission on December 23, 2004 and incorporated by
reference herein.
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(4)
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Previously
filed as Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q,
for the quarterly period ended June 30, 2007, filed with the Commission
on
August 8, 2007 and incorporated by reference herein.
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(5)
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Previously
filed as Exhibit 10.43 to the Registrant’s Current Report on
Form 8-K filed with the Commission on December 11, 2007 and
incorporated by reference herein.
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(6)
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Previously
filed as Exhibit 10.4 to the Registrant’s Quarterly Report on
Form 10-Q, for the quarterly period ended September 30, 2006, filed
with the Commission on November 9, 2006 and incorporated by reference
herein.
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UNDERTAKINGS
1.
The
undersigned registrant hereby undertakes:
(a)
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. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement.
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however,
that
paragraphs (a)(i) and (a)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant
to
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(b)
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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
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.
(d)
That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned registrant or used or referred to by the undersigned registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
2.
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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of
South
San Francisco, State of California, on this 12
th
day of
May, 2008.
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SUNESIS
PHARMACEUTICALS, INC.
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By:
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/s/
DANIEL N. SWISHER, JR.
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Daniel
N. Swisher, Jr.
President
and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Daniel N. Swisher, Jr. and Eric H. Bjerkholt and each
of them acting individually, as his true and lawful attorneys-in-fact and
agents, with full power of each to act alone, with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement on
Form S-8, and to file the same, with all exhibits thereto, and all documents
in
connection therewith, with the U.S. Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, with full power of each to act alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/S/
JAMES W. YOUNG,
PH.D.
James
W. Young, Ph.D.
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Exeutive
Chairman of the Board
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May
12, 2008
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/S/
DANIEL N. SWISHER,
JR.
Daniel
N. Swisher, Jr.
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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May
12, 2008
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/S/
ERIC H.
BJERKHOLT
Eric
H. Bjerkholt
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Senior
Vice President, Corporate
Development
and Finance and Chief Financial Officer
(Principal
Financial and Accounting Officer)
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May
12, 2008
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/S/
ANTHONY B. EVNIN,
PH.D.
Anthony
B. Evnin, Ph.D.
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Director
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May
12, 2008
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/S/
STEPHEN P.A. FODOR,
PH.D.
Stephen
P.A. Fodor, Ph.D.
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Director
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May
12, 2008
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Signature
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Title
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Date
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Director
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May
12, 2008
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Matthew
K. Fust
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Director
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May
12, 2008
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Steven
D. Goldby
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Director
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May
12, 2008
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Jonathan
S. Leff
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/S/
HOMER L. PEARCE,
PH.D.
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Director
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May
12, 2008
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Homer
L. Pearce, Ph.D.
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Director
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May
12, 2008
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David
C. Stump, M.D.
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/S/
JAMES A. WELLS,
PH.D.
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Director
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May
12, 2008
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James
A. Wells, Ph.D.
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EXHIBIT
INDEX
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Exhibit
No.
|
Description
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3.1
(1)
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Amended
and Restated Certificate of Incorporation of the
Registrant.
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3.2
(2)
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Amended
and Restated Bylaws of the Registrant.
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4.1
(3)
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Specimen
Common Stock Certificate of the Registrant.
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4.2
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Reference
is made to Exhibits 3.1 through 3.2 above.
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5.1
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Opinion
of Cooley Godward Kronish
LLP
.
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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 Cooley Godward Kronish
LLP
(included in Exhibit 5.1).
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24.1
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Power
of Attorney. Reference is made to the signature page of this Registration
Statement.
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99.1
(4)
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2005
Equity Incentive Award Plan, as amended, and Form of Stock Option
Agreement.
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99.2
(5)
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Amended
and Restated 2006 Employment Incentive Commencement
Plan.
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99.3
(6)
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Employee
Stock Purchase Plan and Enrollment
Form.
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________________
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(1)
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Previously
filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K/A, for
the year ended December 31, 2006, filed with the Commission on May
23,
2007 and incorporated by reference herein.
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(2)
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Previously
filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed
with the Commission on December 11, 2007 and incorporated by reference
herein.
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(3)
|
Previously
filed as Exhibit 4.1 to the Registrant’s Registration Statement on
Form S-1 (File No. 333-121646), as amended, originally filed
with the Commission on December 23, 2004 and incorporated by
reference herein.
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(4)
|
Previously
filed as Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q,
for the quarterly period ended June 30, 2007, filed with the Commission
on
August 8, 2007 and incorporated by reference herein.
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(5)
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Previously
filed as Exhibit 10.43 to the Registrant’s Current Report on
Form 8-K filed with the Commission on December 11, 2007 and
incorporated by reference herein.
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(6)
|
Previously
filed as Exhibit 10.4 to the Registrant’s Quarterly Report on
Form 10-Q, for the quarterly period ended September 30, 2006, filed
with the Commission on November 9, 2006 and incorporated by reference
herein.
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