S-3/A 1 v059648_s3a.htm
Registration No. 333-138736 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

AMENDMENT NO. 1
TO
FORM S-3
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 Number)
 
341 Oyster Point Boulevard
South San Francisco, California 94080
(650) 266-3500
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
 
Daniel N. Swisher, Jr.
President and Chief Executive Officer
Sunesis Pharmaceuticals, Inc.
341 Oyster Point Boulevard
South San Francisco, California 94080
(650) 266-3500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 
Copies to:
 
Alan C. Mendelson
William C. Davisson
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
(650) 328-4600
 
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
 
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
 
 
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a) may determine
 
 
 
EXPLANATORY NOTE
 
    This amendment is being filed solely to file exhibits previously omitted. No changes have been made to Part I of the Registration Statement.
 
PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
ITEM 14. Other Expenses of Issuance and Distribution.
 
The following table sets forth the costs and expenses payable by Sunesis Pharmaceuticals, Inc. in connection with the sale of the securities being registered hereby. All amounts are estimates except the Securities and Exchange Commission registration fee.
 
     
Amount to be Paid
  
Securities and Exchange Commission registration fee
 
$
8,025
  
Nasdaq Global Market listing fee
    
45,000
  
Blue sky qualification fees and expenses
   
5,000
 
Printing and engraving expenses
   
10,000
 
Legal fees and expenses
   
150,000
 
Accounting fees and expenses
   
20,000
 
Transfer agent and registrar fees
   
5,000
 
Trust fees and expenses
    
5,000
  
Miscellaneous
   
51,975
 
Total
 
$
300,000
  

ITEM 15. Indemnification of Directors and Officers.
 
As permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the registrant provide that (i) the registrant is required to indemnify its directors and officers to the fullest extent not prohibited by the Delaware General Corporation Law, (ii) the registrant may, in its discretion, indemnify its other employees and agents as set forth in the Delaware General Corporation Law, (iii) the registrant is required to advance all expenses incurred by its directors and officers in connection with certain legal proceedings, and (iv) the rights conferred in the bylaws are not exclusive.
 
Article VI of the certificate of incorporation of the registrant provides for the indemnification of directors to the fullest extent permissible under Delaware law.
 
The registrant has entered into agreements with its directors and officers that require the registrant to indemnify such persons against expenses, judgments, fines and settlement amounts that any such person becomes legally obligated to pay in connection with any proceeding, whether actual or threatened, to which such person may be made a party by reason of the fact that such person is or was a director or officer of the registrant or any of its subsidiaries. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. At present, no litigation or proceeding is pending that involves a director or officer of the registrant regarding which indemnification is sought, nor is the registrant aware of any threatened litigation that may result in claims for indemnification.
 
The registrant maintains a directors’ and officers’ insurance and registrant reimbursement policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses the registrant for those losses for which the registrant has lawfully indemnified the directors and officers. The policy contains various exclusions, none of which apply to this offering.
 
The Eighth Amended and Restated Investor Rights Agreement, as amended, among the registrant and certain investors provides for cross-indemnification in connection with registration of the registrant’s common stock on behalf of such investors.
 
See also the undertakings set out in response to Item 17.
 
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ITEM 16. Exhibits.
 
Exhibit Number
  
Description
     
1.1(2)
  
Form of Underwriting Agreement.
     
3.1
  
Amended and Restated Certificate of Incorporation of the Registrant (Delaware) (incorporated by reference to Exhibit 3.4 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
3.2
  
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.6 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
4.1
  
Specimen Common Stock certificate of the Registrant (incorporated by reference to Exhibit 4.1 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
4.2(2)
  
Specimen Preferred Stock certificate of the Registrant.
     
4.3(2)
  
Form of Debt Security.
     
4.4(1)
  
Form of Indenture, between Registrant and one or more trustees to be named.
     
5.1
  
Opinion of Latham & Watkins LLP.
     
12.1(1)
  
Statement of computation of ratios.
     
23.1
 
Consent of Independent Registered Public Accounting Firm.
     
23.2
  
Consent of Latham & Watkins LLP (included in Exhibit 5.1).
     
24.1(1) 
  
Power of Attorney.
     
25.1(2)
  
Statement of Eligibility of Trustee on Form T-1.
 
(1)
 Previously filed.
   
(2)
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.

ITEM 17. Undertakings.
 
(a) The undersigned registrant hereby undertakes:
 
(1) 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.
 
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Provided, however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the registration statement is on Form S-3 or Form F-3 and 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 statements or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(3) 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.
 
(b) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
 
(1)  Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
 
(2)  Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
 
(c) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(d) The undersigned registrant hereby undertakes that: (i) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of the registration statement as of the time it was declared effective; and (ii) for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
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(e) 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 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(f) If and when applicable, the undersigned registrant, hereby undertakes to file an application for the purpose of determining the eligibility of the Trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act.

(g) 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.
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in South San Francisco, State of California, on the 8th day of December, 2006.
 
     
  SUNESIS PHARMACEUTICALS, INC.
 
 		  
 		  
 
  By:   /s/ DANIEL N. SWISHER, JR. 
 
Daniel N. Swisher, Jr.
President and Chief Executive Officer
 
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
 
        
*
James W. Young, Ph.D.
 
Executive Chairman of the Board
 
 
December 8, 2006
 
 
 
 
 
/s/ DANIEL N. SWISHER, JR.
 Daniel N. Swisher, Jr.
 
President, Chief Executive Officer and Director (Principal Executive Officer)
 
December 8, 2006
 
 
 
 
 
/s/ ERIC H. BJERKHOLT
 Eric H. Bjerkholt
 
Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
 
December 8, 2006
 
 
 
 
 
*
 Anthony B. Evnin, Ph.D.
 
Director
 
December 8, 2006
 
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Signature
  
Title
  
Date
         
*
 Stephen P.A. Fodor, Ph.D.
  
Director
  
December 8, 2006
       
 
  
 
*
 Matthew K. Fust
  
Director
  
December 8, 2006
   
 
  
 
*
 Steven D. Goldby
  
Director
  
December 8, 2006
   
 
  
 
*
 Jonathan S. Leff
  
Director
  
December 8, 2006
   
 
  
 
*
 Homer L. Pearce, Ph.D.
  
Director
  
December 8, 2006
   
 
  
 
*
 David C. Stump, M.D.
  
Director
  
December 8, 2006
   
 
  
 
*
 James A. Wells, Ph.D.
  
Director
  
December 8, 2006
 
 
*  By:
/s/ DANIEL N. SWISHER, JR.
Daniel N. Swisher, Jr.
Attorney-in-Fact
 
 
 
 
 
 
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EXHIBIT INDEX
 
Exhibit Number
  
Description
     
1.1(2)
  
Form of Underwriting Agreement.
     
3.1
  
Amended and Restated Certificate of Incorporation of the Registrant (Delaware) (incorporated by reference to Exhibit 3.4 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
3.2
  
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.6 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
4.1
  
Specimen Common Stock certificate of the Registrant (incorporated by reference to Exhibit 4.1 to Registration Statement on Form S-1 (SEC File No. 333-121646) filed on December 23, 2004).
     
4.2(2)
  
Specimen Preferred Stock certificate of the Registrant.
     
4.3(2)
  
Form of Debt Security.
     
4.4(1)
  
Form of Indenture, between Registrant and one or more trustees to be named.
     
5.1
  
Opinion of Latham & Watkins LLP.
     
12.1(1)
  
Statement of computation of ratios.
     
23.1
 
Consent of Independent Registered Public Accounting Firm.
     
23.2
  
Consent of Latham & Watkins LLP (included in Exhibit 5.1).
     
24.1(1) 
  
Power of Attorney.
     
25.1(2)
  
Statement of Eligibility of Trustee on Form T-1.
 
(1)
 Previously filed.
   
(2)
To be filed by amendment or by a report filed under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.

 
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