As filed with the U.S. Securities and Exchange Commission on July 10, 2009

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)

 

 

2005 Equity Incentive Award Plan

Amended and Restated 2006 Employment Commencement Incentive 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 Godward Kronish 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

   1,182,352 shares          $0.3945        $466,437.86          $27.00  

 

(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 2005 Equity Incentive Award Plan and Amended and Restated 2006 Employment Commencement Incentive 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 Global Market on July 7, 2009, 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 2005 Equity Incentive Award Plan             

   1,082,352    $ 0.3945    $ 426,987.86

Common Stock, par value $0.0001 per share, reserved for future issuance under the Amended and Restated 2006 Employment Commencement Incentive Plan

   100,000      0.3945      39,450.00
              

Total

   1,182,352       $ 466,437.86
              

Registration Fee

         $ 27.00
            

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, 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) and May 12, 2008 (File No. 333-150834) relating to the Registrant’s 2005 Equity Incentive Award Plan and Amended and Restated 2006 Employment Commencement Incentive Plan, are each incorporated herein by reference and made a part hereof.

EXHIBITS

 

Exhibit No.

  

Description

      3.1(1)    Amended and Restated Certificate of Incorporation of the Registrant.
      3.2(2)    Amended and Restated Bylaws of the Registrant.
      3.3(3)    Certificate of Designation of the Series A Preferred Stock of the Registrant.
      3.4    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant.
      4.1(4)    Specimen Common Stock certificate of the Registrant.
      4.2    Reference is made to Exhibits 3.1 and 3.2 above.
      5.1    Opinion of Cooley Godward Kronish LLP.
    23.1    Consent of Independent Registered Public Accounting Firm.
    23.2    Consent of Cooley Godward Kronish LLP (included in Exhibit 5.1).
    24.1    Power of Attorney. Reference is made to the signature page of this Registration Statement.
    99.1(5)    2005 Equity Incentive Award Plan, as amended, and Form of Stock Option Agreement.
    99.2(6)    Amended and Restated 2006 Employment Commencement Plan.

 

(1) Previously filed as Exhibit 3.1 to the Registrant’s Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2006, filed on May 23, 2007 and incorporated by reference herein.
(2) Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on December 11, 2007 (File No. 000-51531) and incorporated by reference herein.
(3) Previously filed as Exhibit 3.3 to the Registrant’s Current Report on Form 8-K on April 3, 2009 (File No. 000-51531) and incorporated by reference herein.
(4) Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-121646), as amended, originally filed on December 23, 2004 and incorporated by reference herein.
(5) Previously filed as Exhibit 10.3 to our Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2008, filed with the SEC on April 30, 2009 and incorporated herein by reference.
(6) Previously filed as Exhibit 10.32 to our Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2008, filed with the SEC on April 30, 2009 and incorporated herein by reference.

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 20 percent 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) of this section 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.

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 10th day of July, 2009.

 

S UNESIS P HARMACEUTICALS , I NC .

By:  

/s/ Daniel N. Swisher, Jr.

  Daniel N. Swisher, Jr.
  President and Chief Executive Officer

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.

 

Signature

  

Title

  

Date

/s/ James W. Young

   Chairman of the Board    July 10, 2009
James W. Young, Ph.D.      

 

/s/ Daniel N. Swisher, Jr.

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

   July 10, 2009
Daniel N. Swisher, Jr.      

/s/ Eric H. Bjerkholt

  

Senior Vice President, Corporate Development and Finance, Chief Financial Officer and Corporate Secretary

(Principal Financial and Accounting Officer)

   July 10, 2009
Eric H. Bjerkholt      

/s/ Matthew K. Fust

   Director    July 10, 2009
Matthew K. Fust      

/s/ Edward Hurwitz

   Director    July 10, 2009
Edward Hurwitz      

Signature

  

Title

  

Date

/s/ Dayton Misfeldt

   Director    July 10, 2009
Dayton Misfeldt      

/s/ Homer L. Pearce

   Director    July 10, 2009
Homer L. Pearce, Ph.D.      

/s/ David C. Stump

   Director    July 10, 2009
David C. Stump, M.D.      

EXHIBIT INDEX

 

Exhibit No.

  

Description

      3.1(1)    Amended and Restated Certificate of Incorporation of the Registrant.
      3.2(2)    Amended and Restated Bylaws of the Registrant.
      3.3(3)    Certificate of Designation of the Series A Preferred Stock of the Registrant.
      3.4    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant.
      4.1(4)    Specimen Common Stock certificate of the Registrant.
      4.2    Reference is made to Exhibits 3.1 and 3.2 above.
      5.1    Opinion of Cooley Godward Kronish LLP .
    23.1    Consent of Independent Registered Public Accounting Firm.
    23.2    Consent of Cooley Godward Kronish LLP (included in Exhibit 5.1).
    24.1    Power of Attorney. Reference is made to the signature page of this Registration Statement.
    99.1(5)    2005 Equity Incentive Award Plan, as amended, and Form of Stock Option Agreement.
    99.2(6)    Amended and Restated 2006 Employment Commencement Plan.

 

(1) Previously filed as Exhibit 3.1 to the Registrant’s Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2006, filed on May 23, 2007 and incorporated by reference herein.
(2) Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on December 11, 2007 (File No. 000-51531) and incorporated by reference herein.
(3) Previously filed as Exhibit 3.3 to the Registrant’s Current Report on Form 8-K on April 3, 2009 (File No. 000-51531) and incorporated by reference herein.
(4) Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-121646), as amended, originally filed on December 23, 2004 and incorporated by reference herein.
(5) Previously filed as Exhibit 10.3 to our Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2008, filed with the SEC on April 30, 2009 and incorporated herein by reference.
(6) Previously filed as Exhibit 10.32 to our Annual Report as amended on Form 10-K/A (File No. 000-51531), for the year ended December 31, 2008, filed with the SEC on April 30, 2009 and incorporated herein by reference.

Exhibit 3.4

CERTIFICATE OF AMENDMENT OF

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

SUNESIS PHARMACEUTICALS, INC.

S UNESIS P HARMACEUTICALS , I NC . , a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that:

F IRST : The name of the Corporation is S UNESIS P HARMACEUTICALS , I NC .

S ECOND : The date on which the Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware is February 10, 1998.

T HIRD : Pursuant to Section 242 of the General Corporation Law of the State of Delaware, this Certificate of Amendment of Amended and Restated Certificate of Incorporation amends Section A of Article IV of the Corporation’s Amended and Restated Certificate of Incorporation to read in its entirety as follows:

“A. This Corporation is authorized to issue two classes of stock to be designated, respectively, “ Common Stock ” and “ Preferred Stock .” The total number of shares that the Corporation is authorized to issue is four hundred ten million (410,000,000) shares, four hundred million (400,000,000) shares of which shall be Common Stock and ten million (10,000,000) shares of which shall be Preferred Stock. The Common Stock shall have a par value of $0.0001 per share and the Preferred Stock shall have a par value of $0.0001 per share.”

F OURTH : The foregoing amendment to the Corporation’s Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.

I N W ITNESS W HEREOF , S UNESIS P HARMACEUTICALS , I NC . has caused this Certificate of Amendment to be signed by its Chief Executive Officer this 2nd day of July, 2009.

 

S UNESIS P HARMACEUTICALS , I NC .
By:  

/s/    Daniel N. Swisher, Jr.

  Daniel N. Swisher, Jr.,
  Chief Executive Officer and President

Exhibit 5.1

LOGO

Suzanne Sawochka Hooper

(650) 843-5180

hooperss@cooley.com

July 10, 2009

Sunesis Pharmaceuticals, Inc.

395 Oyster Point Boulevard, Suite 400

South San Francisco, CA 94080

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the filing by Sunesis Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), of a Registration Statement on Form S-8 (the “ Registration Statement ”) with the U.S. Securities and Exchange Commission covering the offering of up to one million one hundred eighty-two thousand three hundred
fifty-two (1,182,352) shares of the Company’s Common Stock, $0.0001 par value (the “ Shares ”), pursuant to its 2005 Equity Incentive Award Plan and Amended and Restated 2006 Employment Commencement Incentive Plan (collectively, the “ Plans ”).

In connection with this opinion, we have examined the Registration Statement and related Prospectuses, your Certificate of Incorporation and Bylaws, as currently in effect, the Plans and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.

Our opinion is expressed only with respect to the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter hereof.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related Prospectuses, will be validly issued, fully paid, and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

 

C OOLEY G ODWARD K RONISH LLP
By:  

/s/ Suzanne Sawochka Hooper        

  Suzanne Sawochka Hooper, Esq.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Sunesis Pharmaceuticals, Inc. 2005 Equity Incentive Award Plan and the Sunesis Pharmaceuticals, Inc. Amended and Restated 2006 Employment Commencement Incentive Plan of our report dated March 30, 2009, except for Note 17, as to which the date is March 31, 2009, with respect to the consolidated financial statements of Sunesis Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2008, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Jose, California

July 9, 2009