Item 3.03. Material Modification to Rights of Security Holders.
On January 18, 2019, Sunesis Pharmaceuticals, Inc. (the “Company”) filed a Certificate of Designation of Preferences, Rights and Limitations of Series E Convertible Preferred Stock (the “Certificate of Designation”) with the Secretary of State of the State of Delaware with respect to the Company’s Series E Convertible Preferred Stock, par value $0.0001 per share (the “Series E Stock”).
The rights, preferences and privileges of the Series E Stock are set forth in the Certificate of Designation. Each share of Series E Stock is convertible into 1,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”) at any time at the holder’s option. The holder, however, will be prohibited from converting shares of Series E Stock into shares of Common Stock if, as a result of such conversion, the holder, together with its affiliates, would own more than 9.98% of the total number of shares of the Company’s Common Stock then issued and outstanding (the “Beneficial Ownership Limitation”); provided, however, that a holder may, upon written notice to the Company, elect to increase or decrease the Beneficial Ownership Limitation (not to exceed the limits under Nasdaq Marketplace Rule 5635(b), to the extent applicable). In the event of the Company’s liquidation, dissolution, or winding up, holders of Series E Stock will receive a payment equal to the amount that would be paid on the common stock underlying the Series E Stock, determined on anas-converted basis. Shares of Series E Stock will generally have no voting rights, except as required by law and except that the consent of holders of a majority of the outstanding Series E Stock will be required to amend the terms of the Series E Stock or to alter or amend the Certificate of Designation. Shares of the Series E Stock will not be entitled to receive any dividends, except to the extent that dividends are paid on the Company’s Common Stock, in which case the holders of the Series E Stock shall be entitled to participate in such dividends on anas-converted basis. The Series E Stock will rank:
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• senior to all of the Company’s Common Stock; |
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• senior to all of the Company’s authorized but unissued Series A Preferred Stock; |
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• senior to any class or series of the Company’s capital stock hereafter created specifically ranking by its terms junior to the Series E Stock; |
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• on parity with all of the Company’s Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; |
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• on parity with any class or series of the Company’s capital stock hereafter created specifically ranking by its terms on parity with the Series E Stock; |
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• junior to any class or series of the Company’s capital stock hereafter created specifically ranking by its terms senior to the Series E Stock; |
in each case, as to distributions of assets upon the Company’s liquidation, dissolution or winding up whether voluntarily or involuntarily.
A copy of the Certificate of Designation is attached hereto as Exhibit 3.1 and is incorporated herein by reference. The foregoing description of the rights, preferences and privileges of the Series E Stock is qualified in its entirety by reference to such exhibit.
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| Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The disclosure set forth above relating to the Company’s Certificate of Designation is incorporated herein to this Item 5.03.
On January 17, 2019, the Company entered into two underwriting agreements (each, an “Underwriting Agreement”) with Wells Fargo Securities, LLC as representative for itself and Oppenheimer & Co. Inc. (together, the “Underwriters”) for separate, concurrent offerings of the Company’s securities, which together are expected to result in gross proceeds to the Company of approximately $20 million.
The first Underwriting Agreement relates to the offering and sale of 23,000,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock Offering”). The purchase price of each share of common stock is $0.50. The Underwriters have a30-day option to purchase up to an additional 3,450,000 shares of common stock. All of the shares in the Common Stock Offering are being sold by the Company.
