Exhibit 10.1
FOURTH AGREEMENT REGARDING
PRIVATE PLACEMENT OF SECURITIES
OF
SUNESIS PHARMACEUTICALS,
INC.
T HIS A GREEMENT (the “ Agreement ”) is
made and entered into as of this 29 th day of March, 2010, by and among S
UNESIS P HARMACEUTICALS , I NC ., a
Delaware corporation (the “ Company ”),
and the persons and entities listed on Exhibit A hereto
(the “ Investors ”).
R ECITALS
A. The Company and the Investors wish to amend that
certain Investor Rights Agreement, dated April 3, 2009, as
amended June 29, 2009 and October 27, 2009 (as amended,
the “ Rights Agreement ”), by and among
the Company and the Investors (as defined in the Rights
Agreement);
B. Pursuant to Section 8(c) of the Rights
Agreement, Section 7(b) of the Rights Agreement may be amended
only by written consent of the Company, the Majority Investors (as
defined in the Rights Agreement) and Alta Partners, Bay City
Capital, NEA and Nextech (each as defined in the Rights Agreement);
and
C. The undersigned hold or have the right to
acquire at least a majority-in-interest of the total Unit Shares
and constitute the Majority Investors and include Alta Partners,
Bay City Capital, NEA and Nextech (collectively, the “
Requisite Investors ”).
AGREEMENT
N OW ,
T HEREFORE
, in consideration of these premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. A MENDMENT TO R IGHTS A GREEMENT . All
capitalized terms not otherwise defined in this Section 2
shall be as defined in the Rights Agreement. The Company and the
undersigned hereby agree that Section 7(b)(2) of the Rights
Agreement is hereby amended and restated to read as
follows:
“Subject to
Section 7(b)(6) below, from and after the earlier to occur of
(i) the Second Unit Closing, (ii) the Common Equity
Closing and (iii) the closing of an Alternative Common Stock
Financing in which the Investors exercise preemptive rights
pursuant to the terms of this Agreement and, as a result,
beneficially own greater than a majority of the Company’s
voting stock as of such closing, the Company shall take all
appropriate action to promptly establish and maintain the size of
the Board at nine (9) members, five (5) of which shall be
Investor Designees and nominated in accordance with the provisions
of this Section 7(b). Alta Partners, Bay City Capital, NEA and
Nextech, together with their respective affiliates, shall each have
the right to designate one (1) such Investor Designee.
Notwithstanding the foregoing, the Company’s obligation to
set and maintain the size of the Board at nine (9) members and
the Investors’ right to designate five (5) Investor
Designees pursuant to this Section 7(b)(2) shall not be
effective prior to May 1 , 2010 or such later date as
determined by the Majority Investors. On or prior to
January 20 of each year in which the Majority Investors have
rights pursuant to this Section 7(b) (assuming the Company has
made a request therefor at least five (5) Trading Days prior
thereto), and within five (5) Trading Days of the request by
the Company in connection with the preparation of a proxy statement
with respect to the election of memb