As filed with the U.S. Securities and Exchange Commission on May 7, 2014

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 plan)

 

 

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)

 

 

Copy to:

Mehdi Khodadad

Cooley LLP

3175 Hanover Street

Palo Alto, California 94304-1130

Telephone: (650) 843-5000

Fax: (650) 849-7400

 

 

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

 

 

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

Common Stock, par value $0.0001 per share

  2,445,484 shares   $ 5.12   $ 12,520,878.08   $ 1,612.69

 

 

(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 the 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 Stock Market on May 6, 2014, in accordance with Rule 457(c) of the Securities Act. The chart below details the calculations of the registration fee:

 

 

Securities  

Number of

Shares

 

Offering Price
Per Share

 

Aggregate

Offering Price

Shares reserved for future issuance under the 2011 Equity Incentive Plan

  2,173,964   $ 5.12   $ 11,129,671.68

Shares reserved for future issuance under the 2011 Employee Stock Purchase Plan         

     271,720   $ 5.12   $   1,391,206.40

Total

  2,445,484       $ 12,520,878.08

Registration Fee

          $          1,612.69

 

 

 

 

 


EXPLANATORY NOTE

The 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 on June 6, 2011 (File No. 333-174732), March 14, 2012 (File No. 333-180101) and March 13, 2013 (File No. 333-187234) relating to the Registrant’s 2011 Equity Incentive Plan and 2011 Employee Stock Purchase Plan are each incorporated by reference herein.


E XHIBITS

 

          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 Amendment of the Amended and Restated Certificate of Incorporation of the Registrant    S-8    333-160528    3.4    7/10/2009   
  3.4    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 and 3.4               
  4.2    Specimen Common Stock certificate of the Registrant    S-1    333-121646    4.1    12/23/2004   
  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    S-8    333-174732    99.1    6/6/2011   
99.2    Sunesis Pharmaceuticals, Inc. 2011 Employee Stock Purchase Plan    S-8    333-174732    99.2    6/6/2011   


U NDERTAKINGS

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.


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 7th day of May, 2014.

 

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.

 

/s/ James W. Young, Ph.D.         

James W. Young, Ph.D.

   Chairman of the Board   May 7, 2014

/s/ Daniel N. Swisher, Jr.         

Daniel N. Swisher, Jr.

   President, Chief Executive Officer and Director (Principal Executive Officer)   May 7, 2014

/s/ Eric H. Bjerkholt         

Eric H. Bjerkholt

  

Executive Vice President, Corporate Development

and Finance, Chief Financial Officer

(Principal Financial Officer and

Principal Accounting Officer)

  May 7, 2014

/s/ Steve Carchedi         

Steve Carchedi

   Director   May 7, 2014

/s/ Matthew K. Fust         

Matthew K. Fust

   Director   May 7, 2014

/s/ Steven B. Ketchum, Ph.D.         

Steven B. Ketchum, Ph.D.

   Director   May 7, 2014

/s/ Helen S. Kim         

Helen S. Kim

   Director   May 7, 2014

/s/ Dayton Misfeldt         

Dayton Misfeldt

   Director   May 7, 2014

/s/ Homer L. Pearce, Ph.D.         

Homer L. Pearce, Ph.D.

   Director   May 7, 2014

/s/ David C. Stump, M.D.         

David C. Stump, M.D.

   Director   May 7, 2014


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 Amendment of the Amended and Restated Certificate of Incorporation of the Registrant    S-8    333-160528    3.4    7/10/2009   
  3.4    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 and 3.4               
  4.2    Specimen Common Stock certificate of the Registrant    S-1    333-121646    4.1    12/23/2004   
  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    S-8    333-174732    99.1    6/6/2011   
99.2    Sunesis Pharmaceuticals, Inc. 2011 Employee Stock Purchase Plan    S-8    333-174732    99.2    6/6/2011   

Exhibit 5.1

 

LOGO

 

Mehdi Khodadad

T: + 1 650 843 5005

mkhodadad@cooley.com

  VIA EDGAR

May 7, 2014

Sunesis Pharmaceuticals, Inc.

395 Oyster Point Boulevard, Suite 400

South San Francisco, CA 94080

Ladies and Gentlemen:

We have acted as counsel to Sunesis Pharmaceuticals, Inc., a Delaware Corporation (the “ Company ”) and you have requested our opinion with respect to certain matters in connection with the filing by 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 two million four hundred forty five thousand four hundred eighty-four (2,445,484) shares of the Company’s Common Stock, $0.0001 par value (the “ Shares ”), including (a) two million one hundred seventy-three thousand seven hundred sixty-four (2,173,764) shares of Common Stock issuable pursuant to the Company’s 2011 Equity Incentive Plan (the “ 2011 EIP ”) and (b) two hundred seventy-one thousand seven hundred twenty (271,720) shares of Common Stock issuable pursuant to the Company’s 2011 Employee Stock Purchase Plan (the “ 2011 ESPP ”, and together with the 2011 Plan, the “ Plans ”).

In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectuses, your Certificate of Incorporation and Bylaws, each 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 and the conformity to originals of all documents submitted to us as copies thereof.

As to certain factual matters, we have relied upon a certificate of officers of the Company and have not sought to independently verify such matters. 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 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 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 2011 Equity Incentive Plan and 2011 Employee Stock Purchase Plan of Sunesis Pharmaceuticals, Inc. of our reports dated March 6, 2014, with respect to the consolidated financial statements of Sunesis Pharmaceuticals, Inc. and the effectiveness of internal control over financial reporting of Sunesis Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Redwood City, California

May 7, 2014