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):
March 30, 2009
SUNESIS
PHARMACEUTICALS, INC.
|
|
(Exact
name of registrant as specified in its charter)
|
|
|
|
|
|
|
|
|
|
(State
or other jurisdiction
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
of
incorporation)
|
|
|
|
|
|
|
|
|
|
395 Oyster Point Boulevard, Suite 400
South
San Francisco, California
|
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
|
|
|
Registrant’s
telephone number, including area code:
(650)
266-3500
|
|
|
|
|
|
(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))
On April 3, 2009, Sunesis
Pharmaceuticals, Inc. (the “Company”) completed the initial closing for
$10.0 million of units, consisting of Series A Preferred Stock and
warrants to purchase common stock, as previously described in the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on
April 1, 2009 (the “Prior Current Report”). The description of the
securities purchase agreement under Item 1.01 of the Prior Current Report is
incorporated herein by reference.
Item
1.01. Entry into a Material Definitive Agreement.
Investor Rights
Agreement
In
connection with the initial closing of the private placement to purchase up to
$43.5 million of the Company’s securities (the “Private Placement”), the Company
entered into the investor rights agreement with the investors in the form
described in Item 1.01 under the heading “Investor Rights Agreement” in the
Prior Current Report, which is incorporated herein by reference.
The foregoing description of the
investor rights agreement is not complete and is qualified in its entirety by
reference to the full text of the investor rights agreement, a copy of which is
filed herewith as Exhibit 4.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
Item 2.05.
Costs Associated with Exit or Disposal Activities.
On March 30, 2009, the compensation
committee of the board of directors of the Company, in conjunction with the
closing of the Private Placement, committed to a restructuring plan that will
result in a reduction in force affecting six employees, including two
executives. Employees directly affected by the restructuring plan have
received notification and will be provided with severance payments.
Sunesis expects to complete the restructuring plan in April 2009.
As a result of the restructuring plan,
the Company estimates that it will record a restructuring charge of
approximately $0.6 million in the first quarter of 2009 for severance and other
personnel-related expenses. The severance payments will be made during the
second quarter of 2009. Other personnel-related expenses such as employee
benefits will be substantially paid over the remainder of 2009. The
restructuring charge that the Company expects to incur in connection with the
restructuring is subject to a number of assumptions, and actual results may
materially differ. The Company may also incur other material charges not
currently contemplated due to events that may occur as a result of, or
associated with, the restructuring plan.
Item 2.05 of this Current Report
contains “forward-looking” statements, including but not limited to statements
with respect to the expected timing for completion of the restructuring plan;
estimated restructuring charges to be incurred by the Company in the first
quarter of 2009; anticipated benefits of the restructuring; and the anticipated
costs incurred by the Company in connection with the restructuring. Any
statements contained in this report that are not statements of historical fact
may be deemed to be forward-looking statements. The Company’s actual results and
the timing of events could differ materially from those anticipated in such
forward-looking statements as a result of these risks and uncertainties, which
include, without limitation, the risk that the Company’s restructuring costs may
be greater than anticipated; the risk that the Company’s workforce reduction and
any future workforce and expense reductions may have an adverse impact on the
Company’s internal programs, the Company’s ability to hire and retain key
personnel and may be distracting to management; and risks related to the
Company’s need for additional funding and other risks detailed from time to time
in the Company’s SEC reports, including its Annual Report on Form 10-K for the
year ended December 31, 2008, and other periodic filings with the Securities and
Exchange Commission. The Company does not undertake any obligation to update
forward-looking statements.
Item 3.02. Unregistered
Sales of Equity Securities
.
On March 31, 2009, the Company entered
into a securities purchase agreement with accredited investors, including
certain members of management, providing for a Private Placement, as previously
disclosed in the Prior Current Report. The Private Placement contemplates the
sale of up to $15.0 million of units consisting of Series A Preferred Stock and
warrants to purchase common stock in two closings. $10.0 million of
units were sold at the initial closing on April 3, 2009. In the
initial closing for $10.0 million of units, the Company issued approximately 2.9
million shares of Series A Preferred Stock, which are initially convertible into
approximately 29.0 million shares of common stock, and warrants to purchase
approximately 29.0 million shares of common stock. The warrants
issued at the initial closing have an exercise price of $0.22 per share and a
term of seven years from issuance. The net proceeds, after deducting placement
agent fees and other estimated offering expenses payable by the Company, are
expected to be approximately $8.8 million. The terms and conditions
of the convertibility of the Series A Preferred Stock are discussed in greater
detail in Item 5.03 below and are incorporated herein by
reference. The Company expects any and all net proceeds received from
the initial closing of the Private Placement to be used for working capital and
other general corporate purposes.
The
shares of Series A Preferred Stock sold in the initial closing were offered and
sold in the Private Placement to accredited investors, including members
management, without registration under the Securities Act of 1933, as amended
(the “Securities Act”), or state securities laws, in reliance on the exemptions
provided by Section 4(2) of the Securities Act, and Regulation D
promulgated thereunder and in reliance on similar exemptions under applicable
state laws. Accordingly, the securities to be issued in the Private Placement
have not been registered under the Securities Act, and until so registered,
these securities may not be offered or sold in the United States absent
registration or availability of an applicable exemption from
registration.
The foregoing description of the
securities purchase agreement and the warrants is not complete and is qualified
in its entirety by reference to the full text of the securities purchase
agreement and form of warrant, copies of which are filed herewith as Exhibit
10.1 and Exhibit 10.2 to this Current Report on Form 8-K, and are incorporated
herein by reference.
Item
3.03. Material Modification to Rights of Security
Holders.
The information contained in
Item 1.01 under the caption “Investor Rights Agreement” and Item
5.03 of this Current Report on Form 8-K are incorporated herein by
reference.
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Retirement of a Named
Executive Officer
In connection with the restructuring,
James W. Young,
Ph.D.
has retired as Executive Chairman, effective as of April 3, 2009,
and will continue to serve on the Company’s board of directors as
non-executive Chairman. In connection with his resignation, the Company has
agreed to cover Dr. Young’s medical benefits for a period of twelve months;
however, Dr. Young is not otherwise entitled to any severance in connection with
his resignation pursuant to his Second Amended and Restated Executive Severance
Benefits Agreement with the Company, dated December 23, 2008, a copy of which is
filed as Exhibit 10.46 to the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008 as filed with the Securities Exchange Commission on
April 3, 2009.
Resignations of Members of
the Board of Directors
In connection with the
Private Placement,
Anthony B. Evnin, Ph.D., Stephen P.A. Fodor,
Ph.D. and Steven D. Goldby have resigned from the Company’s board of
directors, effective as of April 3, 2009.
Appointment of Members of
the Board of Directors
In connection with the Private
Placement, Ed Hurwitz was appointed to the Company’s board of directors and the
Company intends that he will serve on the audit committee and compensation
committee of the board of directors. Mr. Hurwitz has served as
a director of Alta Partners since June 2002. From June 1997 to
October 2002, Mr. Hurwitz served as Senior Vice President and Chief Financial
Officer of Affymetrix, Inc., a microarray technology company. From April 1994 to
June 1997, Mr. Hurwitz was a biotechnology research analyst for Robertson
Stephens & Company, and from April 1992 to April 1994, was a biotechnology
research analyst for Smith Barney Shearson. From November 1990 to
April 1992, Mr. Hurwitz practiced commercial law at Cooley Godward
LLP. Mr. Hurwitz holds a B.A. in Molecular Biology from Cornell
University, a J.D. from the University of California, Berkeley’s Boalt School of
Law and an M.B.A. from the Haas School of Business. Mr. Hurwitz
is a director of Alta BioPharma Partners III, L.P. that purchased
approximately $1.1 million units in the initial closing and is party to the
securities purchase agreement and investor rights agreement described
above.
In connection with the Private
Placement, Dayton Misfeldt was appointed to the Company’s board of
directors and intends to appoint him the compensation committee of the
board of directors. Mr. Misfeldt is an Investment Partner at Bay City Capital
LLC and focuses on biopharmaceutical investment opportunities. Prior to
joining Bay City Capital in May 2000, Mr. Misfeldt was a Vice President at Roth
Capital Partners where he worked as a sell-side analyst covering the
biopharmaceutical industry. Mr. Misfeldt has also worked as a Project
Manager at Life Science Economics. Mr. Misfeldt received a B.A. in Economics
from the University of California, San Diego.
Upon their appointment to the Company’s
board of directors on April 3, 2009, Mr. Hurwitz and Mr. Misfeldt were each
automatically granted an option to purchase 30,000 shares of the Company’s
common stock at the closing price of the Company’s common stock on April 3,
2009. These options vest and become exercisable in two equal annual
installments over a two-year period commencing with the date of grant and have a
ten-year term. Mr. Hurwitz and Mr. Misfeldt will also be eligible to
receive an automatic grant of 10,000 shares of the Company’s common stock at the
Company’s 2010 Annual Meeting and each future annual meeting in which they
continue to serve on the Company’s board of directors (the “Annual Options”).
The Annual Options shall become vested and exercisable in twelve equal monthly
installments over the twelve-month period following their date of
grant. Mr. Hurwitz and Mr. Misfeldt shall also be entitled to receive
an annual cash retainer of $20,000 for serving on the Company’s board of
directors, as well as a $3,000 committee fee for each committee of the Company’s
board of directors on which they serve (plus $5,000 for any committee on which
they serve as chair). The Company and each of Mr. Hurwitz and Mr.
Misfeldt also intend to enter into the Company’s standard Indemnification
Agreement for officers and directors which is filed as
Exhibit 10.5 to the
Company’s Registration Statement on Form S-1 (SEC File No. 333-121646)
filed with the Securities and Exchange Commission on December 23,
2004.
2005 Equity Incentive Award
Plan; 2006 Employment Commencement Incentive Plan
In connection with the initial closing
of the Private Placement, the Company’s board of directors amended the 2005
Equity Incentive Award Plan and the 2006 Employment Commencement Incentive Plan
(collectively, the “Incentive Plans”) to provide that a change of control
transaction for purposes of such Incentive Plans shall not include
a transaction effected primarily for the purpose of
financing the Company with cash, without regard to whether such transaction is
effectuated by a merger, equity financing or otherwise (unless otherwise
determined by the plan administrator in its discretion).
The
foregoing description of the Incentive Plans is not complete and is qualified in
its entirety by reference to the full text of the Incentive Plans, copies of
which are filed herewith as Exhibit 10.3 and Exhibit 10.4 to this Current Report
on Form 8-K and are incorporated herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the Private
Placement, on April 3, 2009, the Company filed a Certificate of Designation with
respect to Series A Preferred Stock (the “Certificate”) with the Secretary of
State of the State of Delaware. The Certificate contains the terms and
conditions with respect to the Series A Preferred Stock, as previously disclosed
in Item 1.01 of the Company’s Prior Current Report under the heading “Terms of
the Series A Preferred Stock” which is incorporated herein by
reference.
The
foregoing description of the Certificate is not complete and is qualified in its
entirety by reference to the full text of the Certificate, a copy of which is
filed herewith as Exhibit 3.3 to this Current Report on Form 8-K and is
incorporated by reference herein.
Item 9.01
Financial Statements and
Exhibits.
|
(d) Exhibits
|
|
|
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
3.3
|
|
Certificate
of Designation of the Series A Preferred Stock of the
Company.
|
|
|
|
|
|
4.1
|
|
Investor
Rights Agreement, dated April 3, 2009, by and among the Company and the
purchasers identified on the signature pages thereto.
|
|
|
|
|
|
10.1†
|
|
Securities
Purchase Agreement, dated March 31, 2009, by and among the Company and the
purchasers identified on the signature pages thereto.
|
|
|
|
|
|
10.2
|
|
Form
of Warrant to purchase shares of Common Stock.
|
|
|
|
|
|
10.3
|
|
2005
Equity Incentive Award Plan.
|
|
|
|
|
|
10.4
|
|
2006
Employment Commencement Incentive
Plan.
|
________________________
|
†
|
Confidential
treatment has been requested with respect to certain portions of this
exhibit. Omitted portions have been filed separately with the Securities
and Exchange Commission.
|
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, thereunto
duly authorized.
Dated: April
3, 2009
|
|
|
SUNESIS
PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Daniel N. Swisher,
Jr.
|
|
|
|
Daniel
N. Swisher, Jr.
|
|
|
|
Chief
Executive Officer and President
|
EXHIBIT
INDEX
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
3.3
|
|
Certificate
of Designation of the Series A Preferred Stock of the
Company.
|
|
|
|
|
|
4.1
|
|
Investor
Rights Agreement, dated April 3, 2009, by and among the Company and the
purchasers identified on the signature pages thereto.
|
|
|
|
|
|
10.1†
|
|
Securities
Purchase Agreement, dated March 31, 2009, by and among the Company and the
purchasers identified on the signature pages thereto.
|
|
|
|
|
|
10.2
|
|
Form
of Warrant to purchase shares of Common Stock.
|
|
|
|
|
|
10.3
|
|
2005
Equity Incentive Award Plan.
|
|
|
|
|
|
10.4
|
|
2006
Employment Commencement Incentive
Plan.
|
________________________
|
†
|
Confidential
treatment has been requested with respect to certain portions of this
exhibit. Omitted portions have been filed separately with the Securities
and Exchange Commission.
|
Sunesis Pharmaceuticals (NASDAQ:SNSS)
Historical Stock Chart
From Jul 2024 to Aug 2024
Sunesis Pharmaceuticals (NASDAQ:SNSS)
Historical Stock Chart
From Aug 2023 to Aug 2024
