SNSS Sunesis Pharmaceuticals Inc

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As filed with the U.S. Securities and Exchange Commission on June 6, 2011

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)

 

 

 

Delaware		94-3295878
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

 

395 Oyster Point Boulevard, Suite 400

South San Francisco, CA 94080

(650) 266-3500

(Address of principal executive offices including zip code)

2011 Equity Incentive Plan

2011 Employee Stock Purchase Plan

(Full title of the plans)

 

 

Daniel N. Swisher, Jr.

President and Chief Executive Officer

395 Oyster Point Boulevard, Suite 400

South San Francisco, CA 94080

(650) 266-3500

(Name, 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 LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA 94306

(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.

 

Large accelerated filer		¨		Accelerated filer		¨
Non-accelerated filer		¨   (Do not check if a smaller reporting company)		Smaller reporting company		x

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share (2)		Proposed maximum aggregate offering price (2)		Amount of registration fee (3)
Common Stock, par value $0.0001 per share		5,439,803 shares		$2.895		$15,748,229.69		$1,828.38

 

(1)

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 2011 Equity Incentive Plan and 2011 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.

(2)

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 Capital Market on June 1, 2011, in accordance with Rule 457(c) of the Securities Act.

(3)	The chart below details the calculation of the registration fee:

 

Title of Securities to be Registered		Number of Shares		Offering Price Per Share		Aggregate Offering Price
Common Stock, par value $0.0001 per share, reserved for future issuance under the 2011 Equity Incentive Plan		4,939,803		$2.895		$14,300,729.69
Common Stock, par value $0.0001 per share, reserved for future issuance under the 2011 Employee Stock Purchase Plan		500,000		$2.895		$1,447,500.00
Total		5,439,803				$15,748,229.69
Registration Fee						$1,828.38

The Registration Statement shall become effective upon filing in accordance with Rule 462 under the Act.

 

 

 

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Table of Contents

TABLE OF CONTENTS

 

PART I			1
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS			1
ITEM 1. PLAN INFORMATION			1
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION			1
PART II			1
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT			1
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE			1
ITEM 4. DESCRIPTION OF SECURITIES			2
ITEM 5. INTERESTS OF NAMED EXPERTS OR COUNSEL			2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS			2
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED			3
ITEM 8. EXHIBITS			4
ITEM 9. UNDERTAKINGS			5
SIGNATURES			6
INDEX TO EXHIBITS			7

EXHIBIT 5.1

EXHIBIT 23.1

EXHIBIT 23.2

EXHIBIT 24.1

EXHIBIT 99.1

EXHIBIT 99.2

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PART I

INFORMATION REQUIRED IN THE

SECTION 10(a) PROSPECTUS

 

Item 1.

Plan Information.

The information required by Item 1 is included in documents sent or given to participants in the Company’s 2011 Equity Incentive Plan and 2011 Employee Stock Purchase Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).

 

Item 2.

Registrant Information and Employee Plan Annual Information.

The written statement required by Item 2 is included in documents sent or given to participants in the Company’s 2011 Equity Incentive Plan and 2011 Employee Stock Purchase Plan, pursuant to Rule 428(b)(1) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents filed by the Registrant with the U.S. Securities and Exchange Commission (the “SEC”) are incorporated by reference herein:

 

1.

Our Annual Report on Form 10-K for the year ended December 31, 2010, filed with the SEC on March 29, 2011;

 

2.

The information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2010 from our Definitive Proxy Statement on Form 14A for our 2011 Annual Meeting of Stockholders, filed with the SEC on April 21, 2011;

 

3.

Our Quarterly Report on Form 10-Q for the period ended March 31, 2011, filed with the SEC on May 12, 2011;

 

4.

Our Current Reports on Form 8-K filed with the SEC on February 8, 2011, February 14, 2011, February 18, 2011 and April 6, 2011; and

 

5.

The description of our common stock , which is registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in our registration statement on Form 8-A, filed with the SEC on September 19, 2005, including any amendments or reports filed for the purpose of updating such description.

All documents filed by the Registrant (other than Current Reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

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Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”), permits a Delaware corporation to limit the personal liability of its directors in accordance with the provisions set forth in that section. Section 145 of the DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities including reimbursement for expenses incurred arising under the Securities Act of 1933.

Our amended and restated certificate of incorporation contains provisions permitted under the DGCL relating to the liability of directors. These provisions eliminate a director’s personal liability for monetary damages resulting from a breach of fiduciary duty, except in circumstances involving wrongful acts, such as:

 

•

any breach of the director’s duty of loyalty to the registrant or its stockholders;

 

•

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law;

 

•

any act related to unlawful stock repurchases, redemptions or other distribution or payments of dividends; or

 

•

any transaction from which the director derived an improper personal benefit.

These provisions do not limit or eliminate our rights or any stockholder’s rights to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. These provisions will not alter a director’s liability under federal securities laws.

As permitted by Section 145 of the DGCL, our amended and restated bylaws require us to indemnify our directors and officers to the fullest extent not prohibited by the Delaware law. We may expand the extent of such indemnification by individual contracts with our directors and officers. Further, we may decline to indemnify any director or officer in connection with any proceeding initiated by such person or any proceeding by such person against us or our directors, officers, employees or other agents, unless such indemnification is expressly required to be made by law or the proceeding was authorized by our board of directors.

We have entered into indemnity agreements with each of our current directors and executive officers to give such directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in our amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.

We have the power to indemnify our other employees and agents, as permitted by Delaware law, but we are not required to do so.

We have a directors’ and officers’ insurance and a reimbursement policy. The policy insures our directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses us for those losses for which we have lawfully indemnified the directors and officers. The policy contains various exclusions, none of which apply to any offerings pursuant to this registration statement.

The Investor Rights Agreement, as amended, dated April 3, 2009, between and among Sunesis Pharmaceuticals, Inc. and certain investors provides for cross-indemnification in connection with the registration of our common stock and common stock issuable upon exercise of warrants on behalf of such investors.

 

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Item 7.

Exemption from Registration Claimed.

Not applicable.

 

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Item 8.

Exhibits.

 

				Incorporated By Reference
Exhibit Number		Exhibit Description		Form				File No.				Exhibit				Filing Date				Filed Herewith
3.1		Amended and Restated Certificate of Incorporation of the Registrant			10-K/A				000-51531				3.1				5/23/2007
3.2		Amended and Restated Bylaws of the Registrant			8-K				000-51531				3.2				12/11/2007
3.3		Certificate of Designation of the Series A Preferred Stock of the Registrant			8-K				000-51531				3.3				4/3/2009
3.4		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Registrant			S-8				333-160528				3.4				7/10/2009
3.5		Certificate of Amendment to the Certificate of Designation of the Series A Preferred Stock of the Registrant			8-K				000-51531				3.4				11/2/2009
3.6		Certificate of Amendment to the Certificate of Designation of the Series A Preferred stock of the Registrant			8-K				000-51531				3.5				1/21/2010
3.7		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Registrant			8-K				000-51531				3.1				2/14/2011
4.1		Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7
4.2		Specimen Common Stock certificate of the registrant			S-1				333-121646				4.1				12/23/2004
4.3		Investor Rights Agreement, dated April 3, 2009, by and among the Registrant and the purchasers identified on the signature pages thereto			8-K				000-51531				4.1				4/3/2009
4.4		Form of Warrant to Purchase Common Stock, issued on October 6, 2010 to several purchasers			8-K				000-51531				4.1				10/1/2010
5.1		Opinion of Cooley LLP																		X
23.1		Consent of Independent Registered Public Accounting Firm																		X
23.2		Consent of Cooley LLP																		X (included in Exhibit 5.1)
24.1		Power of Attorney																		X (included on signature page)
99.1		Sunesis Pharmaceuticals, Inc. 2011 Equity Incentive Plan																		X
99.2		Sunesis Pharmaceuticals, Inc. 2011 Employee Stock Purchase Plan																		X

 

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Item 9.

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 herein.

(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.

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.

 

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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 6 ^th day of June, 2011.

 

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.

 

/s/    J AMES W. Y OUNG , P H .D.         James W. Young, Ph.D.		Chairman of the Board		June 6, 2011
/s/    D ANIEL N. S WISHER , J R .         Daniel N. Swisher, Jr.		President, Chief Executive Officer and Director (Principal Executive Officer)		June 6, 2011
/s/    E RIC H. B JERKHOLT         Eric H. Bjerkholt		Senior Vice President, Corporate Development and Finance, Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		June 6, 2011
/ S /    M ATTHEW K. F UST         Matthew K. Fust		Director		June 6, 2011
/s/    E DWARD H URWITZ         Edward Hurwitz		Director		June 6, 2011
/s/    H ELEN S. K IM         Helen S. Kim		Director		June 6, 2011
/s/    D AYTON M ISFELDT         Dayton Misfeldt		Director		June 6, 2011
/s/    H OMER L. P EARCE , P H .D.         Homer L. Pearce, Ph.D.		Director		June 6, 2011
/s/    D AVID C. S TUMP , M.D.         David C. Stump, M.D.		Director		June 6, 2011

 

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EXHIBIT INDEX

 

				Incorporated By Reference
Exhibit Number		Exhibit Description		Form		File No.		Exhibit		Filing Date		Filed Herewith
3.1		Amended and Restated Certificate of Incorporation of the Registrant		10-K/A		000-51531		3.1		5/23/2007
3.2		Amended and Restated Bylaws of the Registrant		8-K		000-51531		3.2		12/11/2007
3.3		Certificate of Designation of the Series A Preferred Stock of the Registrant		8-K		000-51531		3.3		4/3/2009
3.4		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Registrant		S-8		333-160528		3.4		7/10/2009
3.5		Certificate of Amendment to the Certificate of Designation of the Series A Preferred Stock of the Registrant		8-K		000-51531		3.4		11/2/2009
3.6		Certificate of Amendment to the Certificate of Designation of the Series A Preferred stock of the Registrant		8-K		000-51531		3.5		1/21/2010
3.7		Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Registrant		8-K		000-51531		3.1		2/14/2011
4.1		Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7
4.2		Specimen Common Stock certificate of the Registrant		S-1		333-121646		4.1		12/23/2004
4.3		Investor Rights Agreement, dated April 3, 2009, by and among the Registrant and the purchasers identified on the signature pages thereto		8-K		000-51531		4.1		4/3/2009
4.4		Form of Warrant to Purchase Common Stock, issued on October 6, 2010 to several purchasers		8-K		000-51531		4.1		10/1/2010
5.1		Opinion of Cooley LLP										X
23.1		Consent of Independent Registered Public Accounting Firm										X
23.2		Consent of Cooley LLP										X (included in Exhibit 5.1)
24.1		Power of Attorney										X (included on signature page)
99.1		Sunesis Pharmaceuticals, Inc. 2011 Equity Incentive Plan										X
99.2		Sunesis Pharmaceuticals, Inc. 2011 Employee Stock Purchase Plan										X

 

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