UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 10, 2013

 

 

SUNESIS PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   000-51531   94-3295878

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

395 Oyster Point Boulevard, Suite 400

South San Francisco, California

  94080
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (650) 266-3500

Not Applicable

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

On August 11, 2011, we entered into a Controlled Equity Offering SM sales agreement, or the Sales Agreement, with Cantor Fitzgerald & Co., or Cantor, as agent and/or principal, pursuant to which we may issue and sell shares of our common stock par value $0.0001 per share, having an aggregate gross sales price of up to $20.0 million. On April 10, 2013, we amended the Sales Agreement, or the Amendment, primarily to provide for an increase of $30.0 million in the aggregate gross sales price under the Sales Agreement.

Under the Sales Agreement, as amended, Cantor may sell our common stock by methods deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act, including sales made directly on The NASDAQ Stock Market on any other existing trading market for the Common Stock or to or through a market maker. In addition, under the Sales Agreement, as amended, Cantor may sell our common stock by any other method permitted by law, including in privately negotiated transactions. We may instruct Cantor not to sell our common stock if the sales cannot be effected at or above the price designated by us from time to time.

We will pay Cantor a commission rate of 3.0% of the gross sales price per share of any common stock sold through Cantor as agent under the Sales Agreement, as amended. Cantor has entered into a fee sharing agreement with Cowen and Company, LLC, or Cowen, pursuant to which Cowen will be entitled to receive one-third (1/3) of the net commissions payable to Cantor solely with respect to the additional up to $30.0 million of shares of our common stock that may be sold under the Sales Agreement, as amended, in consideration for Cowen’s services to us as a financial advisor under the Sales Agreement, as amended. Other than serving as a financial advisor to us, Cowen will have no other obligation or responsibility in connection with the sale of our common stock under the Sales Agreement, as amended. We also have provided Cantor with customary indemnification and contribution rights.

Under the terms of the sales agreement, we also may sell shares of our common stock to Cantor, as principal for its own account, at a price negotiated at the time of sale. If we sell shares to Cantor in this manner, we will enter into a separate agreement setting forth the terms of any such transactions.

The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which was filed as Exhibit 10.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on August 11, 2011 and is incorporated by reference herein. The foregoing description of the Amendment is qualified in its entirety by reference to the full text of such agreement, which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein. This Current Report on Form 8-K also incorporates by reference the Amendment into our shelf registration statement on Form S-3 (File No. 333-166366) previously filed with the Securities and Exchange Commission.

The opinion of our counsel regarding the validity of the Common Stock that will be issued pursuant to the Sales Agreement, as amended, also is filed herewith as Exhibit 5.1.

 

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

 

Exhibit
Number

 

Description

5.1   Opinion of Cooley LLP .
10.1   Amendment to Sales Agreement, dated August 11, 2011, between Sunesis Pharmaceuticals, Inc. and Cantor Fitzgerald & Co., dated April 10, 2013.
23.1   Consent of Cooley LLP (included in Exhibit 5.1).

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    SUNESIS PHARMACEUTICALS, INC.
Dated: April 10, 2013      
    By:  

  /s/ Eric H. Bjerkholt

      Eric H. Bjerkholt
      Executive Vice President, Corporate Development and Finance, Chief Financial Officer and Corporate Secretary

EXHIBIT INDEX

 

Exhibit
Number

 

Description

5.1   Opinion of Cooley LLP .
10.1   Amendment to Sales Agreement, dated August 11, 2011, between Sunesis Pharmaceuticals, Inc. and Cantor Fitzgerald & Co., dated April 10, 2013.
23.1   Consent of Cooley LLP (included in Exhibit 5.1).

Exhibit 5.1

 

LOGO

Mehdi Khodadad

(650) 843-5005

mkhodadad@cooley.com

April 10, 2013

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 sale by Sunesis Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), of shares of its common stock, par value $0.0001 per share, having an aggregate offering price of up to $30.0 million (the “ Shares ”) pursuant to the Registration Statement on Form S-3 (File No. 333-166366) (the “ Registration Statement ”) and the related Prospectus and Prospectus Supplement filed with the Securities and Exchange Commission (the “ Commission ”). All of the Shares are to be sold by the Company as described in the Registration Statement and related Prospectus and Prospectus Supplement.

In connection with this opinion, we have examined the Registration Statement and related Prospectus and Prospectus Supplement, your Certificate of Incorporation and Bylaws, each as currently in effect, 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.

Further, we have assumed (i) that no more than 5,747,126 Shares will be sold based on a sale price of $5.22 per share, representing the last reported sale price of the Company’s common stock on the NASDAQ Stock Market on April 9, 2013 and (ii) that no Shares will be sold that would cause the Company to not satisfy the eligibility requirements for use of Form S-3 (including Instruction I.B.6. thereof).

With respect to securities of the Company to be issued after the date hereof, we express no opinion to the extent that, notwithstanding its current reservation of shares of common stock, future issuances of securities of the Company or antidilution adjustments to outstanding securities of the Company cause outstanding securities to be convertible for more shares of common stock that the number that remain authorized but unissued.

Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. 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. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein.

 

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

LOGO

Sunesis Pharmaceuticals, Inc.

April 10, 2013

Page Two

 

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 Registration Statement and related Prospectus and Prospectus Supplement, will be validly issued, fully paid, and nonassessable.

[Remainder of Page Intentionally Left Blank]

 

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

LOGO

Sunesis Pharmaceuticals, Inc.

April 10, 2013

Page Three

 

We consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed with the Commission on or about April 10, 2013.

Very truly yours,

C OOLEY LLP

 

By:  

/s/ Mehdi Khodadad

  Mehdi Khodadad

 

FIVE PALO ALTO SQUARE, 3000 EL CAMINO REAL, PALO ALTO, CA 94306-2155 T: (650) 843-5000 F: (650) 849-7400 WWW.COOLEY.COM

Exhibit 10.1

SUNESIS PHARMACEUTICALS, INC.

CONTROLLED EQUITY OFFERING SM

AMENDMENT NO. 1 TO

SALES AGREEMENT

April 10, 2013

Cantor Fitzgerald & Co.

499 Park Avenue

New York, NY 10022

Ladies and Gentlemen:

Reference is made to the Sales Agreement, dated August 11, 2011, including the Schedules thereto (the “ Sales Agreement ”), between Cantor Fitzgerald & Co. (“ CF&Co ”) and Sunesis Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), pursuant to which the Company agreed to sell through CF&Co, as sales agent, up to $20,000,000 of shares of common stock, par value $0.0001 per share, of the Company. All capitalized terms used in this Amendment No. 1 to Sales Agreement between CF&Co and the Company (this “ Amendment ”) and not otherwise defined herein shall have the respective meanings assigned to such terms in the Sales Agreement. CF&Co and the Company agree as follows:

A. Amendments to Sales Agreement . The Sales Agreement is amended as follows:

1. The first sentence of Section 1 of the Sales Agreement is hereby deleted and replaced with the following:

“The Company agrees that, from time to time after April 10, 2013 and during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through CF&Co, acting as agent and/or principal, shares (the “ Placement Shares ”) of common stock of the Company, par value $0.0001 per share (the “ Common Stock ”), having an aggregate offering price of up to $30,000,000 and such amount of Placement Shares shall be available for offer and sale in addition to any offers and sales of shares registered under the Prospectus Supplement filed by the Company on August 11, 2011 pursuant to this Agreement, subject to any limitations set forth in Section 6(e) hereof (“ Maximum Amount ”).”

2. The first sentence of the second paragraph of Section 1 of the Sales Agreement is amended by deleting the parenthetical “(Nos. 333-164025 and 333-166366)” and replacing it with “(File No. 333-166366).”

3. The following sentence shall be added as the third sentence, to the second paragraph of Section 1 of the Sales Agreement:

“The Company may file one or more additional registration statements from time to time that will contain a base prospectus, prospectus and/or prospectus supplement with respect to the Placement Shares, which documents shall constitute the “Prospectus Supplement” and “Prospectus” as applicable.”

4. Schedule 1 is amended by adding the words “as amended on April 10, 2013” after “August 11, 2011.”

5. Schedule 2 is amended by deleting the words “Peter Dippolito.”

6. The first sentence of the Form of Representation Date Certificate attached as Exhibit 7(m) is amended to add “as amended on April 10, 2013” after “August 11, 2011.”

B. Prospectus Supplement . The Company shall file a Rule 424(b) Prospectus Supplement reflecting this Amendment within 2 business days of the date hereof.

C. No Other Amendments . Except as set forth in Part A above, all the terms and provisions of the Sales Agreement shall continue in full force and effect.

D. Counterparts . This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.

E. Governing Law . This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws.

[Remainder of page intentionally left blank.]

 

-2-

If the foregoing correctly sets forth the understanding between us, please so indicate in the space provided below for that purpose.

 

Very truly yours,
SUNESIS PHARMACEUTICALS, INC.

By:

  /s/ Eric H. Bjerkholt
  Name:   Eric H. Bjerkholt
  Title:  

Executive Vice President, Corporate

Development and Finance, and Chief

Financial Officer

ACCEPTED as of the date first above written:

CANTOR FITZGERALD & CO.

By:

 

/s/ Jeffrey Lumby

  Name:   Jeffrey Lumby
  Title:   Senior Managing Director