As filed with the Securities and Exchange Commission on March 13, 2018
Registration Statement 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)
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Delaware
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94-3295878
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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395 Oyster Point Boulevard, Suite 400
South San Francisco, CA 94080
(Address of principal executive offices)
2011 Equity Incentive Plan
(Full title of the plan)
William P. Quinn
Chief Financial Officer, Senior Vice President, Finance and Corporate Development
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 check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an 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.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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Emerging growth company
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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.
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CALCULATION OF REGISTRATION FEE
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Title of each Class of
Securities to be Registered
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Amount
to be
Registered (1)
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Proposed Maximum
Offering Price
Per Share(2)
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Proposed Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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2011 Equity Incentive Plan, Common Stock, par value $0.0001 per share
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1,371,308 shares
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$4.13
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$5,663,502.04
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$705.11
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(1)
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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 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.
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(2)
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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 March 12, 2018, in accordance with Rule 457(c) of the Securities Act.
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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 1,371,308 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), March 14, 2016 (File No. 333-210183) and May 10, 2017 (File No. 333-217849) relating to the 2011 Plan are each incorporated by reference herein.
EXHIBITS
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 13th day of March, 2018.
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SUNESIS PHARMACEUTICALS, INC.
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By:
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/s/ WILLIAM P. QUINN
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William P. Quinn
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Chief Financial Officer, Senior Vice President, Finance and Corporate Development
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dayton Misfeldt and William P. Quinn and each of them acting individually, 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.
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Signature
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Title
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Date
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/S/
J
AMES
W. YOUNG, PH.D
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Chairman of the Board
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March 13, 2018
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James W. Young, Ph.D.
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/S/ DAYTON MISFELDT
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Interim Chief Executive Officer and Director
(Principal Executive Officer)
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March 13, 2018
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Dayton Misfeldt
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/S/ WILLIAM P. QUINN
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Chief Financial Officer, Senior Vice President, Finance and Corporate Development
(Principal Financial Officer and Principal Accounting Officer)
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March 13, 2018
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William P. Quinn
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/S/ STEVE CARCHEDI
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Director
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March 13, 2018
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Steve Carchedi
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/S/ STEVEN B. KETCHUM, PH.D
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Director
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March 13, 2018
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Steven B. Ketchum, Ph. D.
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/S/ HOMER L. PEARCE, PH.D.
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Director
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March 13, 2018
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Homer L. Pearce, Ph.D.
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DAVID C. STUMP,
M.D
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Director
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March 13, 2018
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David C. Stump, M.D.
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/S/
H. Ward wolff
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Director
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March 13, 2018
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H. Ward Wolff
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Exhibit 5.1
Mehdi Khodadad
T: +1 650 843 5005
mkhodadad@cooley.com
March 13, 2018
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 1,371,308 shares of the Company’s common stock, par value $0.0001 per share (the “
Shares
”), issuable pursuant to the Company’s
2011 Equity Incentive Plan (the “
Plan
”)
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In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plan, (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 to the extent that any other laws are applicable to the subject matter hereof and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
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 Plan, 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,
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Cooley LLP
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By:
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/s/ Mehdi Khodadad
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Mehdi Khodadad
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3175 Hanover Street, Palo Alto, CA 94304-1130 T: (650) 843-5000 F: (650) 849-7400 www.cooley.com