As filed with the U.S. Securities and Exchange Commission on May 10, 2017

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.

Chief Executive Officer, President, Interim Chief Financial Officer and Corporate Secretary

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, a smaller reporting company or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth 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  
     Emerging Growth Company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

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

2011 Equity Incentive Plan, Common Stock, par value $0.0001 per share

  836,981 shares   $3.025   $2,531,868   $294

2011 Employee Stock Purchase Plan, Common Stock, par value $0.0001 per share

  209,245 shares   $3.025   $632,966   $73

Total:

  1,046,226 shares   $3.025   $3,164,834   $367

 

 

(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 or 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 5, 2017, in accordance with Rule 457(c) of the Securities Act.

 

 

 


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 Registration Statements 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

This Registration Statement on Form S-8 is filed by Sunesis Pharmaceuticals, Inc., a Delaware corporation (“Registrant”), relating to 209,245 shares of its common stock, $0.0001 par value (the “Common Stock”), issuable to eligible employees of Registrant and its affiliates under the 2011 Employee Stock Purchase Plan (the “ESPP”) and relating to 836,981 shares of its Common Stock issuable to eligible employees, directors and consultants of Registrant and its affiliates under the 2011 Equity Incentive Plan (the “2011 Plan”). Registrant’s Forms S-8 Registration Statements filed with the U.S. Securities and Exchange Commission on June 6, 2011 (File No. 333-174732), March 14, 2012 (File No. 333-180101), March 13, 2013 (File No. 333-187234), May 7, 2014 (File No. 333-195781), March 12, 2015 (File No. 333-202696) and March 14, 2016 (File No. 333-210183) relating to the 2011 Plan and June 6, 2011 (File No. 333-174732), May 7, 2014 (File No. 333-195781) and March 12, 2015 (File No. 333-202696) relating to the ESPP are each incorporated by reference herein.

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 Amendment to the Amended and Restated Certificate of Incorporation of the Registrant    S-8    333-160528    3.4    7/10/2009   
3.4    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant    8-K    000-51531    3.1    2/14/2011   
3.5    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant    8-K    000-51531    3.1    9/7/2016   
3.6    Certificate of Designation of Series B Convertible Preferred Stock    8-K    000-51531    3.1    12/16/2015   
4.1    Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5               
4.2    Specimen Common Stock certificate of the Registrant    S-1    333-121646    4.1    12/23/2004   
4.3    Specimen Preferred Stock Certificate    8-K    000-51531    4.1    12/16/2015   
5.1    Opinion of Cooley LLP                X
23.1    Consent of Independent Registered Public Accounting Firm                X
23.2    Consent of Cooley LLP (included in Exhibit 5.1)                X
24.1    Power of Attorney (included on signature page)                X
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   


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 May, 2017.

 

SUNESIS PHARMACEUTICALS, INC.
By:   /s/ Daniel N. Swisher, Jr.
  Daniel N. Swisher, Jr.
  Chief Executive Officer, President, Interim Chief Financial Officer and Corporate Secretary

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Daniel N. Swisher, Jr. as his true and lawful attorney-in-fact and agent, with full power 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 attorney-in-fact and agent, with full power 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 attorney-in-fact and agent, or his 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 9, 2017

/s/ Daniel N. Swisher, Jr.

   Chief Executive Officer, President, Interim Chief Financial Officer, Corporate Secretary and Director   
Daniel N. Swisher, Jr.    (Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer)    May 10, 2017
/s/ Steve Carchedi      
Steve Carchedi    Director    May 8, 2017
/s/ Matthew K. Fust      
Matthew K. Fust    Director    May 9, 2017
/s/ Steven B. Ketchum, Ph.D.      
Steven B. Ketchum, Ph.D.    Director    May 9, 2017
/s/ Dayton Misfeldt      
Dayton Misfeldt    Director    May 9, 2017
/s/ Geoffrey M. Parker      
Geoffrey M. Parker    Director    May 10, 2017
/s/ Homer L. Pearce, Ph.D.      
Homer L. Pearce, Ph.D.    Director    May 9, 2017
/s/ David C. Stump, M.D.      
David C. Stump, M.D.    Director    May 10, 2017


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 to the Amended and Restated Certificate of Incorporation of the Registrant    S-8    333-160528    3.4    7/10/2009   
3.4    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant    8-K    000-51531    3.1    2/14/2011   
3.5    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Registrant    8-K    000-51531    3.1    9/7/2016   
3.6    Certificate of Designation of Series B Convertible Preferred Stock    8-K    000-51531    3.1    12/16/2015   
4.1    Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5               
4.2    Specimen Common Stock certificate of the Registrant    S-1    333-121646    4.1    12/23/2004   
4.3    Specimen Preferred Stock Certificate    8-K    000-51531    4.1    12/16/2015   
5.1    Opinion of Cooley LLP                X
23.1    Consent of Independent Registered Public Accounting Firm                X
23.2    Consent of Cooley LLP (included in Exhibit 5.1)                X
24.1    Power of Attorney (included on signature page)                X
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      VIA EDGAR

T: +1 650 843 5005

mkhodadad@cooley.com

    

May 10, 2017

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 ”), in connection with the filing by the Company of a registration statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of up to an aggregate of 1,046,226 shares of the Company’s Common Stock, par value $0.0001 per share, consisting of (i) 836,981 shares (the “ EIP Shares ”) issuable pursuant to the Company’s 2011 Equity Incentive Plan (the “ EIP ”) and (ii) 209,245 shares (the “ ESPP Shares ” and together with the EIP Shares, the “ Shares ”) issuable pursuant to the Company’s 2011 Employee Stock Purchase Plan (the “ ESPP ” and together with the EIP, the “ Plans ”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plans, (c) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and (d) such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. 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 an officer of the Company and have not sought independently to verify such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.

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 EIP and the ESPP, respectively, and 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

3175 HANOVER STREET, PALO ALTO, CA 94304-1130 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 report dated March 9, 2017 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, 2016, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Redwood City, California

May 8, 2017