Exhibit
10.44


 


COMMON
STOCK AND WARRANT PURCHASE AGREEMENT


 


THIS COMMON
STOCK AND WARRANT PURCHASE AGREEMENT (“Agreement”) is made as of the 17th
day of March 2006 by and among Sunesis Pharmaceuticals, Inc., a
Delaware corporation (the “Company”), and the other Persons set forth on
the signature pages hereto (each an “Investor” and collectively the
“Investors”).


 


Recitals


 


A.            The
Company and the Investors are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by the
provisions of Regulation D (“Regulation D”), as promulgated by the
Securities and Exchange Commission (the “SEC”) under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder
(the “Securities Act”);


 


B.            The
Investors wish to purchase from the Company, and the Company wishes to sell and
issue to the Investors, upon the terms and subject to the conditions set forth
in this Agreement, an aggregate of 7,246,377 shares (the “Shares”) of
the Company’s common stock, par value $0.0001 per share (the “Common Stock”)
and warrants (the “Warrants”) to purchase an aggregate of 2,173,914 shares of
Common Stock (subject to adjustment pursuant to Section 4 of the Warrants)
in the form of Exhibit A hereto for a purchase price of $6.2475 per
Share and associated Warrant, for an aggregate purchase price of $45,271,740.43,
it being understood that the aggregate fair market value of the warrants, if
issued apart from the Shares, is $271,739.26;


 


C.            Contemporaneous
with the sale of the Shares, the parties hereto will execute and deliver a
Registration Rights Agreement, in the form attached hereto as Exhibit B
(the “Registration Rights Agreement”), pursuant to which the Company
will agree to provide certain registration rights under the Securities Act; and


 


D.            This
Agreement shall be binding upon the Company and the Investors only upon
delivery of the signatures pages hereto by the Company and the Investors.


 


Agreement


 


In
consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.             Definitions.  In addition to those terms defined above and
elsewhere in this Agreement, for the purposes of this Agreement, the following
terms shall have the meanings set forth below:


 

















 


“Affiliate”
means, with respect to any Person, any other Person which directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with, such Person.


 


“Business
Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.


 


“Confidential
Information” means trade secrets, confidential information and know-how
(including but not limited to ideas, formulae, compositions, processes,
procedures and techniques, research and development information, performance
specifications, support documentation, drawings, specifications, designs,
business and marketing plans, and supplier lists and related information).


 


“Effective
Date” means the date on which the Registration Statement is declared
effective by the SEC.


 


“Effectiveness
Deadline” means the date on which the Registration Statement is required to
be declared effective by the SEC under the terms of the Registration Rights
Agreement.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.


 


“Intellectual
Property” means all of the following: (i) patents, patent
applications, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); (ii) trademarks, service marks, trade
dress, trade names, corporate names, logos, slogans and Internet domain names,
together with all goodwill associated with each of the foregoing; (iii) copyrights
and copyrightable works; and (iv) registrations, applications and renewals
for any of the foregoing.


 


“Lockup
Agreement” means a Lockup Agreement in the form of Exhibit C
hereto.


 


“Material Adverse
Effect” means an event, change or occurrence that, individually or together
with any other event, change or occurrence, has a material adverse impact on
the Company’s financial position, business, results of operations or prospects,
excluding any event, change or occurrence resulting from the announcement or
consummation of the transactions contemplated by the Transaction Documents.


 


“Nasdaq”
means The Nasdaq Stock Market, Inc.


 


“Permitted
Liens” means (i) mechanics’, carriers’, or workmen’s, repairmen’s or
similar liens arising or incurred in the ordinary course of business, (ii) liens
for taxes, assessments and other governmental charges that are not due and
payable or which may hereafter be paid without penalty or which are being
contested in good faith by appropriate proceedings


 


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and (iii) other imperfections of title or encumbrances, if any,
that do not, individually or in the aggregate, materially impair the use or
value of the property to which they relate.


 


“Person”
means an individual, corporation, partnership, limited liability company,
trust, business trust, association, joint stock company, joint venture, sole
proprietorship, unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.


 


“Registration
Statement” has the meaning set forth in the Registration Rights Agreement.


 


“SEC
Filings” has the meaning set forth in Section 4.6.


 


“Securities”
means the Shares, the Warrants and the Warrant Shares.


 


“Subsidiary”
of any Person means another Person, an amount of the voting securities, other
voting ownership or voting partnership interests of which is sufficient to
elect at least a majority of its Board of Directors or other governing body (or,
if there are no such voting interests, 50% or more of the equity interests of
which) is owned directly or indirectly by such first Person.


 


“Transaction
Documents” means this Agreement, the Registration Rights Agreement and the
Warrants.


 


“Warrant
Shares” mean the shares of Common Stock issuable upon exercise of the
Warrants (including shares of Common Stock issuable upon adjustment pursuant to
Section 4 of the Warrants).


 


2.             Purchase
and Sale of the Shares and the Warrants. 
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, each of the Investors shall, severally and not
jointly, purchase, and the Company shall sell and issue to the Investors, the
Shares and the Warrants in the respective amounts set forth below the Investors’
names on the signature pages hereto.


 


3.             Closing.  The purchase and sale of the Shares and the
Warrants pursuant to Section 2 shall take place at the offices of Latham &
Watkins LLP, 135 Commonwealth Drive, Menlo Park, California 94025 on March 17,
2006, or at such other location and on such other date as the Company and the
Investors shall mutually agree (which time and place are designated as the “Closing”).  At the Closing, the Company shall deliver to
each Investor a certificate or certificates representing the number of Shares
and a Warrant for the number of shares of Common Stock each as set forth below
such Investor’s name on the signature pages hereto against payment of the
purchase price therefor by wire transfer of immediately available funds to a
bank account designated by the Company.


 


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4.             Representations
and Warranties of the Company.  The
Company hereby represents and warrants to the Investors that, except as disclosed
in the SEC Filings or as set forth in the schedules delivered herewith
(collectively, the “Disclosure Schedules”):


 


4. 1          Organization,
Good Standing and Qualification.  The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted and to own its
properties.  The Company is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification necessary, except where the
failure to so qualify, individually or in the aggregate, would not have a
Material Adverse Effect.  To the Company’s
knowledge, no proceeding has been instituted in any jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail, such power and
authority or qualification. The Company has no Subsidiaries.


 


4.2           Authorization.  The Company has full corporate power and
authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of the Transaction Documents, (ii) the
authorization of the performance of all obligations of the Company hereunder or
thereunder and (iii) the authorization, issuance, sale and delivery of the
Securities.  The Transaction Documents
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’
rights generally.


 


4.3           Capitalization.  Schedule 4.3 sets forth as of the
date hereof (a) the authorized capital stock of the Company; (b) the
number of shares of capital stock issued and outstanding; (c) the number
of shares of capital stock available for issuance pursuant to the Company’s
stock plans; and (d) the number of shares of capital stock issuable and
reserved for issuance pursuant to securities exercisable for, or convertible
into or exchangeable for any shares of capital stock of the Company.  All of the issued and outstanding shares of
the Company’s capital stock have been duly authorized and validly issued and
are fully paid, nonassessable and free of preemptive rights.  No Person is entitled to pre-emptive or
similar statutory or contractual rights with respect to any securities of the Company.  There are no outstanding warrants, options,
convertible securities or other rights, agreements or arrangements under which
the Company is obligated to issue equity securities.  Except as contemplated under this Agreement,
there are no contracts, commitments, understandings or arrangements by which
the Company is bound to issue additional shares of capital stock of the Company
or options, securities or rights convertible into shares of capital stock of
the Company. Except as provided in the Registration Rights Agreement, no Person
has the right to require the Company to register any securities of the Company
under the Securities Act, whether on a demand basis or in connection with the
registration of securities of the Company for its own account or for the
account of any other Person.  The issue
and sale of the Securities will not result in the right of any holder of
Company securities to adjust the exercise, conversion or exchange price under
such securities.


 


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4.4           Valid
Issuance.  The Shares and the
Warrants have been duly and validly authorized and, when issued and paid for
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable, and will be free of encumbrances and restrictions (other than
those created by the Investors), except for restrictions on transfer set forth
in the Transaction Documents or imposed by applicable securities laws. The
Warrant Shares have been reserved for issuance and, upon issuance pursuant to
the Warrants, will be duly and validly authorized and fully paid and
nonassessable.


 


4.5           Consents.  The execution, delivery and performance by
the Company of the Transaction Documents and the offer, issuance and sale of
the Securities and the Warrant Shares requires no consent of, action by or in
respect of, or filing with, any Person, governmental body, agency, or official
other than filings that have been made pursuant to applicable state securities
laws and post-sale filings pursuant to applicable state and federal securities
laws which the Company undertakes to file within the applicable time periods.


 


4.6           Delivery
of SEC Filings.  The Company has made
available to the Investors through the EDGAR system, true and complete copies
of (a) the Company’s Registration Statement on Form S-1 filed with
the SEC on September 27, 2005 including all exhibits thereto and documents
incorporated by reference therein (the “IPO Registration Statement”), (b) the
Company’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2005 filed with the SEC on November 14, 2005 including all exhibits thereto
and documents incorporated by reference therein and (c) the Company’s
Current Reports on Form 8-K filed with the SEC on November 14, 2005, January 6,
2006 and February 15, 2006 including all exhibits thereto and documents
incorporated by reference therein (the “Periodic Filings” and, together
with the IPO Registration Statement, the “SEC Filings”).  The Periodic Filings are the only periodic
filings required of the Company pursuant to the Exchange Act through the date
hereof.


 


4.7           Use
of Proceeds.  The net proceeds of the
sale of the Shares and the Warrants hereunder shall be used by the Company for
working capital and general corporate purposes.


 


4.8           No
Material Adverse Change.  Since September 30,
2005, there has not been:


 


(i)            any
change in the consolidated assets, liabilities, financial condition or
operating results of the Company from that reflected in the financial
statements included in the Company’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2005, except for changes in the ordinary
course of business which would not have, individually or in the aggregate, a
Material Adverse Effect;


 


(ii)           any
declaration or payment of any dividend, or any authorization or payment of any
distribution, on any of the capital stock of the Company, or any redemption or
repurchase of any securities of the Company (other than in connection with a
termination of employment);


 


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(iii)          any
material damage, destruction or loss to any assets or properties of the
Company;


 


(iv)          any
waiver, not in the ordinary course of business, by the Company of a material
right or of a material debt owed to it;


 


(v)           any
change or amendment to the Company’s Certificate of Incorporation or Bylaws, or
change to any material contract or arrangement by which the Company is bound or
to which its assets or properties is subject;


 


(vi)          any
material labor difficulties or labor union organizing activities with respect
to employees of the Company;


 


(vii)         any
transaction entered into by the Company other than in the ordinary course of
business;


 


(viii)        the
loss of the services of any key employee, or material change in the composition
or duties of the senior management of the Company; or


 


(ix)           any
other event or condition of any character that has had or would reasonably be
expected to have a Material Adverse Effect.


 


4.9           SEC
Filings.  At the time of filing
thereof, the SEC Filings complied as to form in all material respects with the
requirements of the Exchange Act and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading.


 


4.10         No
Conflict, Breach, Violation or Default. 
Neither the execution, delivery and performance of the Transaction
Documents by the Company nor the consummation of any of the transactions
contemplated hereby (including without limitation the issuance and sale of the
Securities) will conflict with or result in violation of any of the terms and
provisions of the Company’s Certificate of 
Incorporation or Bylaws, both as in effect on the date hereof or will
give rise to the right to terminate or accelerate the due date of any payment
under or conflict with or result in a breach of any term or provision of, or
constitute a default (or any event which with notice or lapse of time or both
would constitute a default) under, or require any consent or waiver under or
result in the execution or imposition of any lien, charge or encumbrance upon
the properties or assets of the Company pursuant to the terms of any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of its assets or
properties is subject or any license, permit, statute, rule, regulation,
judgment, decree or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any of its assets
or properties, other than a conflict, breach or default that would not have a
Material Adverse Effect.


 


4.11         Tax
Matters.  The Company has timely
prepared and filed all tax returns required to have been filed by the Company
with all appropriate governmental agencies and


 


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timely paid all taxes shown thereon or otherwise owed by it, except as
would not have a Material Adverse Effect. 
The charges, accruals and reserves on the books of the Company in
respect of taxes for all fiscal periods are adequate in all material respects,
and there are no material unpaid assessments against the Company.  All taxes and other assessments and levies
that the Company is required to withhold or to collect for payment have been
duly withheld and collected and paid to the proper governmental entity or third
party when due.  There are no tax liens
or claims pending or, to the Company’s knowledge, threatened against the Company
or any of its assets or property, other than Permitted Liens.  There are no tax audits or investigations
pending, which if adversely determined would result in a Material Adverse
Effect. There are no outstanding tax sharing agreements or other such
arrangements between the Company and any other Person.  The Company does not have any deferred
compensation arrangements and has not paid or is not required to pay any
deferred compensation which would be subject to Section 409A of the
Internal Revenue Code.


 


4.12         Title
to Properties.  The Company has good
and marketable title to all properties and assets owned by it, in each case
free from liens, encumbrances and defects, other than Permitted Liens.  The Company holds any leased real or Personal
property under valid and enforceable leases. 
The Company does not own any real property.


 


4.13         Certificates,
Authorities and Permits.  The Company
possesses adequate certificates, approvals, authorities or permits (“Permits”)
issued by governmental agencies or bodies necessary to own, lease and license
its assets and properties and conduct the business now operated by it, all of
which are valid and in full force and effect, except where the lack of such
Permits, individually or in the aggregate, would not have a Material Adverse
Effect.  The Company has performed in all
material respects all of its material obligations with respect to such Permits
and no event has occurred that allows, or after notice or lapse of time, would
allow, revocation or termination thereof. The Company has not received any
written notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company, would, individually or in the aggregate, have a Material Adverse
Effect.


 


4.14         Labor
Matters.


 


(a)           The
Company is not a party to or bound by any collective bargaining agreement.  The Company has not violated in any material
respect any laws, regulations, orders or contract terms, affecting the
collective bargaining rights of employees, labor organizations or any laws,
regulations or orders affecting employment discrimination, equal opportunity
employment or employees’ health, safety, welfare, wages and hours.


 


(b)           (i) There
are no labor disputes existing, or to the Company’s knowledge, threatened,
involving strikes, slow-downs, work stoppages, job actions, disputes, lockouts
or any other disruptions of or by the Company’s employees, (ii) there are
no unfair labor practices or petitions for election pending or, to the Company’s
knowledge, threatened before the National Labor Relations Board or any other
federal, state or local labor commission relating to the Company’s employees, (iii) no
demand for recognition or certification heretofore made by any labor organization
or group of employees is pending with respect to the Company and (iv) to
the


 


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Company’s knowledge, the Company enjoys good labor and employee
relations with its employees.


 


(c)           The
Company is in compliance in all material respects with applicable laws
respecting employment (including laws relating to classification of employees
and independent contractors) and employment practices, terms and conditions of
employment, wages and hours, and immigration and naturalization.  No claims are pending against the Company
before the Equal Employment Opportunity Commission or any other administrative
body or in any court asserting any violation of Title VII of the Civil Rights Act
of 1964, the Age Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or
any other federal, state or local law, statute or ordinance barring
discrimination in employment.


 


(d)           The
Company is not a party to, or bound by, any employment or other contract or
agreement that contains any severance, termination pay or change of control
liability or obligation, including, without limitation, any “excess parachute
payment,” as defined in Section 280G(b) of the Internal Revenue Code
of 1986, as amended.


 


4.15         Intellectual
Property.


 


(a)           To
the Company’s knowledge, all Intellectual Property of the Company is valid and
enforceable.  No Intellectual Property
owned or licensed by the Company that is necessary for the conduct of Company’s
business as currently conducted or as proposed to be conducted as described in
the SEC Filings is involved in any cancellation, dispute or litigation, and, to
the Company’s knowledge, no such action is threatened.  No issued patent owned by the Company is
involved in any interference, reissue, re-examination or opposition proceeding.


 


(b)           All
of the in-bound licenses and sublicenses and consent, royalty or other
agreements concerning Intellectual Property which are necessary for the conduct
of the Company’s business as currently conducted and as proposed to be
conducted as described in the SEC Filings to which the Company is a party
(other than  generally commercially available, non-custom, off-the-shelf
software application programs having a retail acquisition price of less than
$50,000 per license) (collectively, “In-Bound License Agreements”) are,
to the Company’s knowledge, valid and binding obligations of the Company,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally, and, to the Company’s knowledge,
the Company is not in material breach of any of its obligations under any such
In-Bound License Agreements.


 


(c)           The
Company owns or has the valid right to use all of the Intellectual Property
that is necessary for the conduct of the Company’s business as currently
conducted and as proposed to be conducted as described in the SEC Filings and
for the ownership, maintenance and operation of the Company’s properties and
assets, free and clear of all liens, encumbrances, adverse claims or, with
respect to Intellectual Property owned by the Company, obligations to license
such Intellectual Property, other than licenses of the Intellectual Property
owned by the Company that are entered into in the ordinary course of the
Company’s business.  To the Company’s
knowledge, the Company has a valid and enforceable right to use all third party


 


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Intellectual Property and Confidential Information used or held for use
in the business of the Company.


 


(d)           To
the Company’s knowledge, the conduct of the Company’s business as currently
conducted or as proposed to be conducted as described in the SEC Filings, the
use or exploitation of any Intellectual Property owned by the Company, or to
its knowledge, the use or exploitation of any Intellectual Property licensed by
the Company does not infringe, misappropriate or otherwise materially impair or
conflict with (collectively, “Infringe”) any Intellectual Property
rights of any third party and, to the Company’s knowledge, the Intellectual
Property owned by the Company which is necessary for the conduct of Company’s
business as currently conducted or as proposed to be conducted as set forth in
the SEC Filings is not being Infringed by any third party.  There is no litigation, court order, claim or
assertion pending or outstanding or, to the Company’s knowledge, threatened,
that seeks to limit or challenge the ownership, use, validity or enforceability
of any Intellectual Property owned or licensed by the Company or the Company’s
use of any Intellectual Property owned by a third party.


 


(e)           To
the Company’s knowledge, the consummation of the transactions contemplated
hereby and by the other Transaction Documents will not result in the (i) loss,
material impairment of or material restriction on any of the Intellectual
Property or Confidential Information owned by the Company which is necessary
for the conduct of Company’s business as currently conducted or as proposed to
be conducted as set forth in the SEC Filings or (ii) material breach of
any In-Bound License Agreement.


 


(f)            The
Company has taken reasonable steps to protect the Company’s rights in its Intellectual
Property and Confidential Information. 
Each employee and consultant who has access to the Company’s
Confidential Information necessary for the conduct of Company’s business as
currently conducted has executed an agreement to maintain the confidentiality
of such Confidential Information.  To the
Company’s knowledge, and except pursuant to non-disclosure agreements entered
into between the Company and third parties in the ordinary course of business,
there has been no disclosure of the Company’s Intellectual Property or
Confidential Information to any third party. 
To the Company’s knowledge, there have been no misappropriations or
infringements by any Person of any Intellectual Property used in the conduct or
operation of the Company’s business.


 


4.16         Environmental
Matters.  The Company is not in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “Environmental Laws”).  The Company does not own or operate any real
property contaminated with any substance that is subject to any Environmental
Laws, is not liable for any off-site disposal or contamination pursuant to any
Environmental Laws, and is not subject to any claim relating to any
Environmental Laws, which violation, contamination, liability or claim would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.  There is no pending or,
to the Company’s knowledge, threatened investigation that might lead to such a
claim.


 


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4.17         Litigation.  There are no pending or, to the Company’s
knowledge, threatened actions, suits, proceedings, inquiries or investigations
against or affecting the Company or any of its properties or any of the Company’s
officers and directors in their capacities as such.


 


4.18         Financial
Statements.  The financial statements
included in each SEC Filing present fairly, in all material respects, the
financial position of the Company as of the dates shown and its results of
operations and cash flows for the periods shown, and such financial statements
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis (“GAAP”) (except as
may be disclosed therein or in the notes thereto, and, in the case of quarterly
financial statements, as permitted by Form 10-Q under the Exchange
Act).  Except as set forth in the
financial statements of the Company included in the SEC Filings filed prior to
the date hereof, the Company has not incurred any liabilities, contingent or
otherwise, except those incurred in the ordinary course of business, consistent
with past practices since the date of such financial statements, none of which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.


 


4.19         Insurance
Coverage.  The Company maintains in
full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted and properties owned or
leased by the Company.


 


4.20         Compliance
with Nasdaq Continued Listing Requirements. 
The Company is in compliance with applicable Nasdaq continued listing
requirements.  The Company has not
received any written notice with respect to the delisting of the Common Stock
from the Nasdaq National Market.


 


4.21         Brokers
and Finders.  Other than Cowen &
Co.. LLC, the fees of which shall be paid by the Company, no Person will have,
as a result of the transactions contemplated by the Transaction Documents, any
valid right, interest or claim for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or on
behalf of the Company.


 


4.22         No
Directed Selling Efforts or General Solicitation.  Neither the Company nor any Person acting on
its behalf has conducted any general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) in connection
with the offer or sale of the Securities.


 


4.23         No
Integrated Offering.  Neither the
Company nor any Person acting on its behalf has, directly or indirectly, made
any offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(2) of the Securities Act for the exemption from
registration for the transactions contemplated hereby or would require
registration of the Securities under the Securities Act or would be integrated
under the Nasdaq Marketplace Rules.


 


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4.24         Private
Placement.  Subject to the accuracy
of each Investor’s representations in Section 5 hereof, the offer and sale
of the Securities to the Investors as contemplated hereby is exempt from the
registration requirements of the Securities Act.


 


4.25         Questionable
Payments.  Neither
the Company nor, to the Company’s knowledge, any of its directors, officers,
employees, agents or other Persons acting on behalf of the Company, has on
behalf of the Company or in connection with its business: (a) used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (b) made any direct or
indirect unlawful payments to any governmental officials or employees from
corporate funds; (c) established or maintained any unlawful or unrecorded
fund of corporate monies or other assets; (d) made any false or fictitious
entries on the books and records of the Company; or (e) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment of
any nature.


 


4.26         Transactions
with Affiliates.  None of the
officers or directors of the Company and, to the Company’s knowledge, none of
the employees of the Company is presently a party to any transaction with the
Company (other than as holders of stock options and/or warrants, and for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or Personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the Company’s
knowledge, any entity in which any officer, director, or any such employee has
a substantial interest or is an officer, director, trustee or partner.


 


4.27         Internal Controls.  The Company is in material compliance with
the provisions of the Sarbanes-Oxley Act of 2002 currently applicable to the
Company.  The Company maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company is made known to the certifying officers by
others within those entities.  The
Company’s certifying officers have evaluated the effectiveness of the Company’s
controls and procedures as of the end of the period covered by the most
recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”).  The Company presented in its
most recently filed periodic report under the Exchange Act the conclusions of
the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date.  Since the Evaluation Date, there have been no
significant changes in the Company’s internal controls (as such term is defined
in Item 307(b) of Regulation S-K) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal controls.  The books, records and accounts of the
Company accurately and fairly reflect, in all material respects, the
transactions in, and dispositions of, the assets of,


 


11

















 


and the results of operations of, the Company.  The Company maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with GAAP and the applicable requirements of the Exchange Act.


 


4.28         Independent
Accountants.  Ernst & Young
LLP is the Company’s independent registered public accounting firm as required
by the Exchange Act, and the rules and regulations of the SEC thereunder.


 


4.29         Investment Company.  The Company is not and, after giving effect
to the offering and sale of the Securities, will not be an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


4.30         Regulatory
Compliance.  The human clinical
trials, animal studies and other preclinical tests conducted by the Company or
in which the Company has participated or that are described in the SEC Filings
or the results of which are referred to in the SEC Filings, and such studies
and tests conducted on behalf of the Company or that the Company intends to
rely on in support of regulatory approval by the United States Food and Drug
Administration (the “FDA”) or foreign regulatory agencies, were and, if still
pending, are being conducted in all material respects in accordance with
experimental protocols, procedures and controls generally used by qualified
experts in the preclinical or clinical study of new drugs; the descriptions of
the results of such studies, test and trials contained in the SEC Filings are
accurate and complete in all material respects, and, except as set forth in the
SEC Filings, the Company has no knowledge of any other trials, studies or
tests, the results of which the Company believes reasonably call into question
the clinical trial results described or referred to in the SEC Filings when
viewed in the context in which such results are described and the clinical
state of development; and the Company has not received any notices or
correspondence from the FDA or any other domestic or foreign governmental
agency requiring the termination, suspension or material modification, other
than modifications customarily implemented during the drug development process,
of any preclinical tests or clinical trials conducted by or on behalf of the
Company or in which the Company has participated that are described in the SEC
Filings or the results of which are referred to in the SEC Filings.


 


4.31         Material
Contracts.  All material documents,
contracts or other agreements of the Company required to be filed with the SEC have
been filed with the SEC and are included in the exhibits to the SEC Filings.  The description of the contracts, documents
or other agreements contained in the SEC Filings (as the case may be) reflect
in all material respects the terms of the underlying contract, document or
other agreement.   Each such contract,
document or other agreement is in full force and effect and is valid and
enforceable by and against the Company in accordance with its terms.  The Company is not in default in the
observance or performance of any term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case which default or
event, individually or in the aggregate, would result in a Material Adverse
Effect.


 


5.             Representations
and Warranties of the Investors. 
Each of the Investors hereby, severally and not jointly, represents and
warrants to the Company that:


 


12

















 


5.1           Organization
and Existence.  Such Investor is a
validly existing corporation, limited partnership or limited liability company
and has all requisite corporate, partnership or limited liability company power
and authority to invest in the Securities pursuant to this Agreement.


 


5.2           Authorization.  The execution, delivery and performance by
such Investor of the Transaction Documents have been duly authorized, and the
Transaction Documents constitute the valid and legally binding obligations of
such Investor, enforceable against such Investor in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors’ rights generally.


 


5.3           Purchase
Entirely for Own Account.  The
Securities to be received by such Investor hereunder will be acquired for such
Investor’s own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the Securities Act,
and such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same in violation of the
Securities Act.  Such Investor is not a
broker-dealer registered with the SEC under the Exchange Act or an entity
engaged in a business that would require it to be so registered.


 


5.4           Investment
Experience.  Such Investor
acknowledges that it can bear the economic risk and complete loss of its
investment in the Securities and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of
the investment in the Securities contemplated hereby.


 


5.5           Disclosure
of Information.  Such Investor has
had an opportunity to receive all information related to the Company requested
by it and to ask questions of and receive answers from the Company regarding
the Company, its business and the terms and conditions of the offering of the
Securities.  Such Investor acknowledges
receipt of copies of the SEC Filings.


 


5.6           Restricted
Securities.  Such Investor
understands that the Securities are characterized as “restricted securities”
under the U.S. federal securities laws inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances.


 


5.7           Legends.  It is understood that, except as provided
below, certificates evidencing the Securities may bear the following or any
similar legend:


 


(a)           “The
securities represented hereby have not been registered under the Securities Act
of 1933, as amended (the “Securities Act”), or any state securities laws.  The securities represented hereby may not be
transferred unless (i) such securities have been registered for sale
pursuant to the Securities Act, (ii) such securities may be sold pursuant
to Rule 144(k), or (iii) the Company has received an opinion of
counsel reasonably satisfactory to it


 


13

















 


that such transfer may lawfully be made without registration under the
Securities Act or qualification under applicable state securities laws.”


 


(b)           If
required by the authorities of any state in connection with the issuance of
sale of the Securities, the legend required by such state authority.


 


5.8           Accredited
Investor.  Such Investor is an
accredited investor as defined in Rule 501(a) of Regulation D, as
amended, under the Securities Act.


 


5.9           No
General Solicitation.  Such Investor
did not learn of the investment in the Securities as a result of any public
advertising or general solicitation.


 


5.10         Brokers
and Finders.  No Person will have, as
a result of the transactions contemplated by the Transaction Documents, any
valid right, interest or claim against or upon the Company or an Investor for
any commission, fee or other compensation pursuant to any agreement,
arrangement or understanding entered into by or on behalf of such Investor.


 


5.11         Prohibited
Transactions.  During the last thirty
(30) days prior to the date hereof, neither such Investor nor any Affiliate of
such Investor which (x) had knowledge of the transactions contemplated hereby,
(y) has or shares discretion relating to such Investor’s investments or trading
or information concerning such Investor’s investments, including in respect of
the Securities, or (z) is subject to such Investor’s review or input concerning
such Affiliate’s investments or trading (collectively, “Trading Affiliates”)
has, directly or indirectly, (a) acquired, agreed to acquired (other than
pursuant to this Agreement), offered for sale, sold, pledged or otherwise
disposed of any Common Stock, (b) effected or agreed to effect any short
sale, whether or not against the box, established any “put equivalent position”
(as defined in Rule 16a-1(h) under the Exchange Act) with respect to
the Common Stock, granted any other right (including, without limitation, any
put or call option) with respect to the Common Stock or with respect to any
security that includes, relates to or derived any significant part of its value
from the Common Stock or otherwise sought to hedge its position in the Shares
or (c) entered into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of any securities of the Company, whether any such
transaction described in clauses (a), (b) or (c) was or is to be
settled by delivery of securities of the Company, other securities, cash or
otherwise (each, a “Prohibited Transaction”).  Prior to the earliest to occur of (i) the
termination of this Agreement, (ii) the Effective Date or (iii) the
Effectiveness Deadline, such Investor shall not, and shall cause its Trading
Affiliates not to, engage, directly or indirectly, in a Prohibited
Transaction.  Such Investor acknowledges
that the representations, warranties and covenants contained in this Section 5.11
are being made for the benefit of the Investors as well as the Company and that
each of the other Investors shall have an independent right to assert any
claims against such Investor arising out of any breach or violation of the
provisions of this Section 5.11.


 


14

















 


6.             Conditions
to Closing.


 


6.1           Conditions
to the Investors’ Obligations. The obligation of each Investor to purchase
the Shares and the Warrants at the Closing is subject to the satisfaction, on
or prior to the Closing Date, of the following conditions, any of which may be
waived by such Investor (as to itself only):


 


(a)           The
representations and warranties made by the Company in Section 4 hereof
qualified as to materiality shall be true and correct on the date hereof and on
the Closing Date (except to the extent any such representation or warranty
expressly speaks as of a specific date, in which case such representation or
warranty shall be true and correct as of such date), and the representations
and warranties made by the Company in Section 4 hereof not qualified as to
materiality shall be true and correct in all material respects on the date
hereof and on the Closing Date (except to the extent any such representation or
warranty expressly speaks as of a specific date, in which case such representation
or warranty shall be true and correct in all material respects as of such
specific date).  The Company shall have
performed in all material respects all obligations and covenants herein
required to be performed by it on or prior to the Closing Date.  The Company shall have delivered a
certificate, executed on behalf of the Company by its Chief Executive Officer
or its Chief Financial Officer, dated as of the Closing Date, certifying to the
fulfillment of the condition specified in this Section 6.1(a).


 


(b)           The
Company shall have obtained any and all consents, permits, approvals,
registrations and waivers necessary or appropriate for consummation of the
purchase and sale of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents to be consummated on or
prior to the Closing Date, all of which shall be in full force and effect.


 


(c)           The
Company shall have executed and delivered the Transaction Documents.


 


(d)           No
judgment, writ, order, injunction, award or decree of or by any court, or
judge, justice or magistrate, including any bankruptcy court or judge, or any
order of or by any governmental authority, shall have been issued, and no
action or proceeding shall have been instituted by any governmental authority,
enjoining or preventing the consummation of the transactions contemplated by
the Transaction Documents.


 


(e)           The
Company shall have delivered a certificate, executed on behalf of the Company
by its Secretary, dated as of the Closing Date, certifying the resolutions
adopted by the Board of Directors of the Company approving the transactions
contemplated by the Transaction Documents, certifying the current versions of
the Certificate of Incorporation and Bylaws of the Company and certifying as to
the signatures and authority of Persons signing the Transaction Documents and
related documents on behalf of the Company.


 


(f)            The
Investors shall have received an opinion from Latham & Watkins LLP,
the Company’s counsel, dated as of the Closing Date, in the form attached
hereto as Exhibit D.


 


15

















 


(g)           No
stop order or suspension of trading shall have been imposed by Nasdaq, the SEC
or any other governmental or regulatory body with respect to public trading in
the Common Stock. The Company shall not have received notice of any delisting
on Nasdaq or that it is violation of any Nasdaq rule, regulation or
interpretation which could lead to delisting.


 


(h)           The aggregate purchase
price for the Shares and the Warrants shall be at least $40,000,000, of which
at least $17,000,000 and not more than $20,000,000 of the aggregate purchase
price shall represent investment by Alta BioPharma Partners III, L.P., Alta
BioPharma Partners III GmbH & Co. Beteiligungs KG and Alta Embarcadero
BioPharma Partners III, LLC (collectively, “Alta BioPharma Partners”)
and Persons that are (i) stockholders of the Company as of the date hereof
and (ii) affiliated with members of the board of directors.


 


(i)            The Company’s delivery
(i) to its transfer agent of 
irrevocable instructions to issue and deliver to each Investor (or in
such nominee name(s) as designated by such Investor in writing) certificates evidencing
such number of Shares as set forth on the signature pages to this
Agreement, and (ii) duly executed copies of the Warrants to the Investor.


 


(j)            The
Company’s delivery to the Investors of an executed Lockup Agreement from
Venrock Associates, Warburg Pincus and each of the Company’s directors and
executive officers.


 


(k)           The
Nondisclosure Agreement dated as of January 25, 2006 between Alta
BioPharma Partners and the Company shall be amended or terminated, as mutually
agreeable to Alta BioPharma Partners and the Company, to permit the
transactions contemplated by this Agreement.


 


6.2           Conditions
to Obligations of the Company. The Company’s obligation to sell and issue
the Shares and the Warrants at the Closing is subject to the satisfaction on or
prior to the Closing Date of the following conditions, any of which may be
waived by the Company:


 


(a)           The
representations and warranties made by the Investors in Section 5 hereof
shall be true and correct in all material respects when made and as of the
Closing Date with the same force and effect as if they had been made on and as
of said date (except to the extent any such representation or warranty
expressly speaks as of a specific date, in which case such representation or
warranty shall be true and correct in all material respects as of such specific
date).


 


(b)           The
Investors shall have executed and delivered this Agreement and the Registration
Rights Agreement.


 


(c)           No
judgment, writ, order, injunction, award or decree of or by any court, or
judge, justice or magistrate, including any bankruptcy court or judge, or any
order of or by any governmental authority, shall have been issued, and no
action or proceeding shall have been instituted by any governmental authority,
enjoining or preventing the consummation of the transactions contemplated by
the Transaction Documents.


 


16

















 


(d)           The
Investors shall have delivered the Purchase Price for the Shares and the
Warrants to the Company.


 


6.3           Termination
of Obligations to Effect Closing; Effects. 
The obligation of the Company, on the one hand, and the Investors, on the
other hand, to effect the Closing shall terminate as follows:


 


(a)           Upon
the mutual written consent of the Company and the Investors;


 


(b)           By
the Company if any of the conditions set forth in Section 6.2 shall have
become incapable of fulfillment, and shall not have been waived by the Company;


 


(c)           By
an Investor (with respect to itself only) if any of the conditions set forth in
Section 6.1 shall have become incapable of fulfillment, and shall not have
been waived by the Investor; or


 


(d)           By
either the Company or any Investor (with respect to itself only) if the Closing
has not occurred on or prior to April 30, 2006;


 


provided,
however, that, except in the case of clause (i) above,
the party seeking to terminate its obligation to effect the Closing shall not
then be in breach of any of its representations, warranties, covenants or
agreements contained in this Agreement if such breach has resulted in the
circumstances giving rise to such party’s seeking to terminate its obligation
to effect the Closing.


 


7.             Covenants
and Agreements.


 


7.1           No
Conflicting Agreements.  The Company
will not take any action, enter into any agreement or make any commitment that
would conflict or interfere in any material respect with the Company’s
obligations to the Investors under the Transaction Documents.


 


7.2           Insurance.  The Company shall not materially reduce the
insurance coverages described in Section 4.19.


 


7.3           Compliance
with Laws.  The Company will comply
in all material respects with all applicable laws, rules, regulations, orders
and decrees of all governmental authorities.


 


7.4           Listing
of Underlying Shares and Related Matters. 
Promptly following the date hereof, the Company shall take all necessary
action to cause the Shares and the Warrant Shares to be listed on the Nasdaq
National Market.  The Company will use
commercially reasonable efforts to continue the listing and trading of its
Common Stock on the Nasdaq National Market and, in accordance, therewith, will
use commercially reasonable efforts to comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of such
market or exchange, as applicable.


 


17

















 


7.5           Termination
of Covenants.  The provisions of
Sections 7.1 through 7.4 shall terminate and be of no further force and effect
on the date on which the Company’s obligations under the Registration Rights
Agreement to register or maintain the effectiveness of any registration
covering the Registrable Securities (as such term is defined in the
Registration Rights Agreement) shall terminate.


 


7.6           Removal
of Legends.   Upon the earlier of (i) the sale pursuant
to the Registration Statement and receipt by the Company or its agents of the
Investor’s written confirmation that such Shares or the Warrant Shares were
disposed of in compliance with the prospectus delivery requirements of the
Securities Act or (ii) Rule 144(k) under the Securities Act becoming
available for the resale of the Investor’s Shares or the Warrant Shares, the
Company shall within three (3) Business Days of an Investor’s written
request, cause certificates evidencing the Investor’s Shares or Warrant Shares
to be replaced with certificates which do not bear such restrictive legends.


 


7.7           Release
From Lockup Agreement.  Without the
prior written consent of Alta BioPharma Partners, the Company shall not release
any Person from his, her or its respective obligations under any Lockup
Agreement.


 


8.             Survival
and Indemnification.


 


8.1           Survival.  The representations, warranties, covenants
and agreements contained in this Agreement shall survive the Closing of the
transactions contemplated by this Agreement for a period of two years, except
as otherwise expressly provided in this Agreement.


 


8.2           Indemnification.  The Company agrees to indemnify and hold
harmless each Investor and its Affiliates and their respective directors,
officers, employees and agents and each person who controls an Investor within
the meaning of the Securities Act from and against any and all losses, claims,
damages, liabilities and expenses (including without limitation reasonable
attorneys’ fees and disbursements and other expenses incurred in connection
with investigating, preparing or defending any action, claim or proceeding,
pending or threatened and the costs of enforcement thereof) (collectively, “Losses”)
to which such Person may become subject as a result of any breach of
representation, warranty, covenant or agreement made by or to be performed on
the part of the Company under the Transaction Documents.  Each Investor agrees, severally and not
jointly, to indemnify and hold harmless the Company and its directors,
officers, employees and agents from and against any and all Losses to which
such Person may become subject as a result of any breach of representation,
warranty, covenant or agreement made by or to be performed on the part of such
Investor under the Transaction Documents.


 


8.3           Conduct
of Indemnification Proceedings.  Any Person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii) permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided that any
Person entitled to indemnification hereunder shall have the right to employ
separate


 


18

















 


counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (a) the
indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim within
five (5) Business Days after written notice thereof and employ counsel
reasonably satisfactory to such Person or (c) in the reasonable judgment
of any such Person, considering the advice of counsel, a conflict of interest
exists between such Person and the indemnifying party with respect to such
claims (in which case, if the Person notifies the indemnifying party in writing
that such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person); and provided,
further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation, but the omission so to deliver notice to the indemnifying
party will not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 8. 
It is understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or expenses of
more than one additional firm of attorneys at any time for all such indemnified
parties.  No indemnifying party will,
except with the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.


 


9.             Miscellaneous.


 


9.1           Successors
and Assigns.  This Agreement may not
be assigned by a party hereto without the prior written consent of the Company
or the Investors, as applicable, provided, however, that an Investor may assign
its rights and delegate its duties hereunder in whole or in part to an
Affiliate acquiring some or all of its Shares or Warrant Shares after notice
duly given by such Investor to the Company, provided that no such
assignment or obligation shall affect the obligations of such Investor
hereunder.  The provisions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties.  Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


 


9.2           Counterparts;
Faxes.  This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  This Agreement may also be
executed via facsimile, which shall be deemed an original.


 


9.3           Titles
and Subtitles.  The titles and
subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.


 


19

















 


9.4           Notices.  Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given as hereinafter described (i) if given by
Personal delivery, then such notice shall be deemed given upon such delivery, (ii) if
given by telex or telecopier, then such notice shall be deemed given upon
receipt of confirmation of complete transmittal, (iii) if given by mail,
then such notice shall be deemed given upon the earlier of (A) receipt of
such notice by the recipient or (B) three days after such notice is
deposited in first class mail, postage prepaid, and (iv) if given by an
internationally recognized overnight air courier, then such notice shall be
deemed given one Business Day after delivery to such carrier.  All notices shall be addressed to the party
to be notified at the address as follows, or at such other address as such
party may designate by ten days’ advance written notice to the other party:


 


	
  If to the
  Company:

  	
   

  
	
   

  	
   

  
	
  Sunesis Pharmaceuticals, Inc.

  	
   

  
	
  341 Oyster Point Boulevard

  	
   

  
	
  South San Francisco, California 94080

  	
   

  
	
  Attention: General Counsel

  	
   

  
	
  Fax: (650) 266-3505

  	
   

  
	
   

  	
   

  
	
  With a copy
  to:

  	
   

  
	
   

  	
   

  
	
  Latham & Watkins LLP

  	
   

  
	
  135 Commonwealth Drive

  	
   

  
	
  Menlo Park, California 94025

  
	
  Attention:

  	
  Alan
  Mendelson

  
	
   

  	
  William
  Davisson

  
	
  Fax: (650) 463-2600

  
	
   

  
	
  If to the
  Investors, to the addresses set forth on the signature pages hereto.

  
			



 


9.5           Expenses.  The parties hereto shall pay their own costs
and expenses in connection herewith, provided that the Company shall pay
the reasonable fees and expenses, not to exceed $50,000 in the aggregate, of
Cooley Godward LLP as counsel to Alta BioPharma Partners.  In the event that legal proceedings are
commenced by any party to this Agreement against another party to this
Agreement in connection with this Agreement or the other Transaction Documents,
the party or parties which do not prevail in such proceedings shall severally,
but not jointly, pay their pro rata share of the reasonable attorneys’ fees and
other reasonable out-of-pocket costs and expenses incurred by the prevailing
party in such proceedings.


 


9.6           Amendments
and Waivers.  Any term of this
Agreement may be amended and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Investors.  Any amendment or
waiver effected in accordance with this


 


20

















 


paragraph shall be binding upon each holder of any Securities purchased
under this Agreement at the time outstanding, each future holder of all such
Securities, and the Company.


 


9.7           Publicity.  Except as set forth below, no public release
or announcement concerning the transactions contemplated hereby shall be issued
by the Company or the Investors without the prior consent of the Company (in
the case of a release or announcement by the Investors) or the Investors (in
the case of a release or announcement by the Company) (which consents shall not
be unreasonably withheld), except as such release or announcement may be
required by law or the applicable rules or regulations of Nasdaq, any
securities exchange or other securities market. 
On the trading day immediately following the date hereof, the Company
shall issue a press release disclosing the transactions contemplated by this
Agreement.  No later than the fourth
trading day following the date hereof, the Company will file a Current Report
on Form 8-K describing the Transaction Documents and attaching the press
release described in the foregoing sentence. 
In addition, the Company will make such other filings (including filing
the Transaction Documents with the SEC) and notices in the manner and time required
by the SEC or Nasdaq.


 


9.8           Severability.  Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.  To the extent
permitted by applicable law, the parties hereby waive any provision of law
which renders any provision hereof prohibited or unenforceable in any respect.


 


9.9           Entire
Agreement.  This Agreement, including
the exhibits and the Disclosure Schedules, and the other Transaction Documents
constitute the entire agreement among the parties hereof with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.


 


9.10         Further
Assurances.  The parties shall
execute and deliver all such further instruments and documents and take all
such other actions as may reasonably be required to carry out the transactions
contemplated hereby and to evidence the fulfillment of the agreements herein
contained.


 


9.11         Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.  This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of California
without regard to the choice of law principles thereof.  Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of California
located in San Mateo County and the United States District Court for the
Northern District of California for the purpose of any suit, action, proceeding
or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby.  Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. 
Each of the 


 


21

















 


parties hereto irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court.  Each party hereto irrevocably
waives any objection to the laying of venue of any such suit, action or
proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
an inconvenient forum.  EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.


 


9.12         Independent
Nature of Investors’ Obligations and Rights.  The obligations of each Investor under any
Transaction Document are several and not joint with the obligations of any
other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Transaction
Document.  The decision of each Investor
to purchase Securities pursuant to the Transaction Documents has been made by
such Investor independently of any other Investor.  Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents.  Each Investor acknowledges that no other
Investor has acted as agent for such Investor in connection with making its
investment hereunder and that no Investor will be acting as agent of such
Investor in connection with monitoring its investment in the Securities or
enforcing its rights under the Transaction Documents.  Each Investor shall be entitled to
independently protect and enforce its rights, including, without limitation,
the rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose.  The Company acknowledges that each of the
Investors has been provided with the same Transaction Documents for the purpose
of closing a transaction with multiple Investors and not because it was
required or requested to do so by any Investor.


 


(Signature page follows)


 


22

















 


IN WITNESS
WHEREOF, the parties have executed this Common Stock Purchase Agreement as of
the date first above written.


 


	
  The Company:

  	
  SUNESIS
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Daniel
  N. Swisher, Jr.

  
	
   

  	
  Name: 

  	
  Daniel N.
  Swisher, Jr.

  
	
   

  	
  Title:

  	
  President and
  Chief Executive Officer

  
				



 

















 


	
  The
  Investors:

  	
  ABINGWORTH
  BIOEQUITIES MASTER FUND LTD.

  
	
   

  	
  BY:

  	
  Its Manager,
  Abingworth Management

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ James
  Abell

  	
   

  
	
   

  	
  Name: James
  Abell

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  
	
  Purchase
  Price: $2,917,513.82

  
	
  Number of
  Shares: 466,989

  
	
  Number of
  shares of Common

  
	
  Stock underlying Warrant: 140,097

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Abingworth Bioequities Master Fund Ltd.

  
	
   

  	
  c/o Bisys Hedge Fund Services (Ireland) LTD

  
	
   

  	
  Attention: Glenn Kennedy

  
	
   

  	
  One Georges Quay Plaza, 6th Floor

  
	
   

  	
  Dublin 2, Ireland

  
						



 

















 


	
  The
  Investors:

  	
  ALTA
  BIOPHARMA PARTNERS III, L.P.

  
	
   

  	
  BY:

  	
  ALTA
  BIOPHARMA MANAGEMENT III, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Hilary
  Strain

  	
   

  
	
   

  	
  Name:   Hilary
  Strain

  
	
   

  	
  Title: Vice
  President, Finance and Administration

  
	
   

  	
   

  
	
   

  
	
  Purchase
  Price: $11,057,918.75

  
	
  Number of
  Shares: 1,769,975

  
	
  Number of
  shares of Common

  
	
  Stock underlying Warrant: 530,992

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Alta BioPharma Partners III, L.P.

  
	
   

  	
  Attention: Elaine Penny

  
	
   

  	
  One Embarcadero Center, 37th Floor

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
  TAX ID
  NUMBER: 

  	
   

  
								



 

















 


	
  The
  Investors:

  	
  Alta
  BioPharma Partners III GmbH & Co. Beteiligungs KG

  
	
   

  	
  BY:

  	
  ALTA
  BIOPHARMA MANAGEMENT III, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ Hilary
  Strain

  	
   

  
	
   

  	
   

  	
  Name: Hilary
  Strain

  
	
   

  	
   

  	
  Title: Vice
  President, Finance and Administration

  
	
   

  	
   

  
	
   

  	
   

  
	
  Purchase
  Price: $742,640.33

  	
   

  
	
  Number of
  Shares: 118,870

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 35,661

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Alta BioPharma Partners III GmbH & Co. 

  Beteiligungs KG

  
	
   

  	
  Attention: Elaine Penny

  
	
   

  	
  One Embarcadero Center, 37th Floor

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
  TAX ID
  NUMBER:

  	
   

  
							



 

















 


	
  The
  Investors:

  	
  ALTA
  EMBARCADERO BIOPHARMA PARTNERS III, LLC

  
	
   

  
	
   

  
	
   

  	
  By:

  	
    /s/ Hilary
  Strain

  	
   

  
	
   

  	
  Name:  Hilary
  Strain

  
	
   

  	
  Title: Vice
  President, Finance and Administration

  
	
   

  
	
   

  
	
  Purchase
  Price: $272,509.74

  	
   

  
	
  Number of
  Shares: 43,619

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 13,086

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Alta Embarcadero BioPharma Partners III, LLC

  
	
   

  	
  Attention: Elaine Penny

  
	
   

  	
  One Embarcadero Center, 37th Floor

  
	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  
	
  TAX ID
  NUMBER:

  	
   

  
							



 

















 


	
  The
  Investors:

  	
  BIOTECHNOLOGY
  VALUE FUND, L.P.

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Mark
  Lambert

  	
   

  
	
   

  	
  Name:

  	
  Mark Lambert

  
	
   

  	
  Title:

  	
  President of
  BVF Inc.

  
	
   

  	
  General
  Partner of BVF Partners L.P.

  
	
   

  	
  General
  Partner of Biotechnology Value Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Purchase
  Price: $654,319.43

  	
   

  
	
  Number of
  Shares: 104,733

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 31,420

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Biotechnology Value Fund, L.P.

  
	
   

  	
  Attention: Elizabeth Delaney

  
	
   

  	
  900 N. Michigan Avenue

  
	
   

  	
  Suite 1100

  
	
   

  	
  Chicago, IL 60611

  
						



 

















 


	
  The
  Investors:

  	
  BIOTECHNOLOGY
  VALUE FUND II, L.P.

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Mark
  Lambert

  	
   

  
	
   

  	
  Name: Mark
  Lambert

  
	
   

  	
  Title:

  	
  President of
  BVF Inc.

  
	
   

  	
  General
  Partner of BVF Partners L.P.

  
	
   

  	
  General
  Partner of Biotechnology Value Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Purchase
  Price: $449,195.25

  	
   

  
	
  Number of Shares:
  71,900

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 21,570

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
  Biotechnology Value Fund II, L.P.

  
	
   

  	
  Attention: Elizabeth Delaney

  
	
   

  	
  900 N. Michigan Avenue

  
	
   

  	
  Suite 1100

  
	
   

  	
  Chicago, IL 60611

  
					



 

















 


	
  The
  Investors:

  	
  INVESTMENT
  10, L.L.C.

  
	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Mark
  Lambert

  	
   

  
	
   

  	
  Name:

  	
  Mark Lambert

  
	
   

  	
  Title:

  	
  President of
  BVF Inc.

  
	
   

  	
  General
  Partner of BVF Partners L.P.

  
	
   

  	
  General
  Partner of Biotechnology Value Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Purchase
  Price: $190,042.74

  	
   

  
	
  Number of
  Shares: 30,419

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 9,126

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
  Investment 10, L.L.C.

  
	
   

  	
  Attention: Elizabeth Delaney

  
	
   

  	
  900 N. Michigan Avenue

  
	
   

  	
  Suite 1100

  
	
   

  	
  Chicago, IL 60611

  
					



 

















 


	
  The
  Investors:

  	
  BVF
  INVESTMENTS, L.L.C.

  
	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Mark
  Lambert

  	
   

  
	
   

  	
  Name: Mark
  Lambert

  
	
   

  	
  Title:

  	
  President of
  BVF Inc.

  
	
   

  	
  General
  Partner of BVF Partners L.P.

  
	
   

  	
  General
  Partner of Biotechnology Value Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Purchase
  Price: $1,724,559.90

  	
   

  
	
  Number of
  Shares: 276,040

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 82,812

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
  BVF Investments, L.L.C.

  
	
   

  	
  Attention: Elizabeth Delaney

  
	
   

  	
  900 N. Michigan Avenue

  
	
   

  	
  Suite 1100

  
	
   

  	
  Chicago, IL 60611

  
					



 

















 


	
  The
  Investors:

  	
  DOMAIN
  PUBLIC EQUITY PARTNERS, L.P.

  
	
   

  	
  BY: Domain
  Public Equity Associates, L.L.C.

  
	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Nicole
  Vitullo

  	
   

  
	
   

  	
  Name:

  	
  Nicole
  Vitullo

  
	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $5,030,193.38

  	
   

  
	
  Number of
  Shares: 805,153

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 241,546

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
  Domain Public Equity Partners, L.P.

  
	
   

  	
  c/o Domain Associates

  
	
   

  	
  One Palmer Sq. Suite 515

  
	
   

  	
  Princeton, NJ 08542

  
						



 

















 


	
  The
  Investors:

  	
  THE
  BOARD OF TRUSTEES OF THE LELAND

  
	
   

  	
  STANFORD
  JUNIOR UNIVERSITY (SBST)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Martina
  S. Poquet

  	
   

  
	
   

  	
  Name:
  Martina S. Poquet

  
	
   

  	
  Title:

  	
  Director,
  Separate Investments Division

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $99,997.51

  	
   

  
	
  Number of
  Shares: 16,006

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 4,802

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
  The Board of Trustees of the Leland Stanford Junior 

  University (SBST)

  
	
   

  	
  c/o Stanford Management Company

  
	
   

  	
  Attention: Martina Poquet

  
	
   

  	
  2770 Sand Hill Road

  
	
   

  	
  Menlo Park, CA 94025

  
					



 

















 


	
  The
  Investors:

  	
  Warburg, Pincus Equity Partners, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg
  Pincus Partners, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg,
  Pincus & Co.,

  
	
   

  	
   

  	
  its Managing
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Jonathan Leff

  	
   

  
	
   

  	
  Name: Jonathan Leff

  
	
   

  	
  Title:  Partner

  
	
   

  	
   

  
	
  Purchase
  Price: $4,753,535.32

  	
   

  	
   

  
	
  Number of
  Shares: 760,870

  	
   

  	
   

  
	
  Number of
  shares of Common

  	
   

  	
   

  
	
  Stock underlying Warrant: 228,261

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  	
   

  
	
   

  	
   

  	
  Warburg, Pincus Equity Partners, L.P.

  
	
   

  	
   

  	
  Attention: Jonathan Leff

  
	
   

  	
   

  	
  466 Lexington Avenue

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
   

  
	
  TAX ID NUMBER:

  	
   

  	
   

  
						



 

















 


	
  The
  Investors:

  	
  Warburg, Pincus Netherlands Equity Partners I, C.V.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg Pincus
  Partners, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg,
  Pincus & Co.,

  
	
   

  	
   

  	
  its Managing
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/  Jonathan Leff

  	
   

  
	
   

  	
  Name:  Jonathan Leff

  
	
   

  	
  Title:   Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $251,505.60

  	
   

  
	
  Number of
  Shares: 40,257

  	
   

  	
   

  
	
  Number of
  shares of Common

  	
   

  	
   

  
	
  Stock underlying Warrant: 12,077

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  	
   

  
	
   

  	
   

  	
  Warburg, Pincus Netherlands Equity Partners I, C.V.

  
	
   

  	
   

  	
  Attention: Jonathan Leff

  
	
   

  	
   

  	
  466 Lexington Avenue

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
   

  
	
  TAX ID NUMBER:

  	
   

  	
   

  
						



 

















 


	
  The
  Investors:

  	
  Warburg, Pincus Netherlands Equity Partners III, C.V.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg
  Pincus Partners, LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Warburg,
  Pincus & Co.,

  
	
   

  	
   

  	
  its Managing
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/  Jonathan Leff

  	
   

  
	
   

  	
  Name: Jonathan
  Leff

  
	
   

  	
  Title:   Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase Price:
  $25,152.46

  	
   

  
	
  Number of
  Shares: 4,026

  	
   

  	
   

  
	
  Number of
  shares of Common

  	
   

  	
   

  
	
  Stock underlying Warrant: 1,208

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  	
   

  
	
   

  	
   

  	
  Warburg, Pincus Netherlands Equity Partners III, C.V.

  
	
   

  	
   

  	
  Attention: Jonathan Leff

  
	
   

  	
   

  	
  466 Lexington Avenue

  
	
   

  	
   

  	
  New York, NY 10017

  
	
   

  	
   

  	
   

  
	
  TAX ID NUMBER:

  	
   

  	
   

  
						



 

















 


	
  The
  Investors:

  	
  Deerfield
  Special Situations Fund International, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Darren
  Levine

  	
   

  
	
   

  	
  Name: Darren
  Levine

  
	
   

  	
  Title:   CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $3,498,475.00

  	
   

  
	
  Number of
  Shares: 560,000

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 167,000

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Deerfield Special Situations Fund International, Ltd.

  
	
   

  	
  Attention: Darren Levine

  
	
   

  	
  780 Third Avenue - 37th Floor

  
	
   

  	
  New York, NY 10017

  
						



 

















 


	
  The
  Investors:

  	
  Deerfield
  Special Situations Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Darren
  Levine

  	
   

  
	
   

  	
  Name: Darren
  Levine

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $1,886,670.00

  	
   

  
	
  Number of
  Shares: 302,000

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 90,000

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Deerfield Special Situations Fund, Ltd.

  
	
   

  	
  Attention: Darren Levine

  
	
   

  	
  780 Third Avenue - 37th Floor

  
	
   

  	
  New York, NY 10017

  
						



 

















 


	
  The
  Investors:

  	
  Deerfield
  Partners, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Darren
  Levine

  	
   

  
	
   

  	
  Name: Darren
  Levine

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $2,020,116.76

  	
   

  
	
  Number of
  Shares: 323,306

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 99,092

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Deerfield Partners, L.P.

  
	
   

  	
  Attention: Darren Levine

  
	
   

  	
  780 Third Avenue - 37th Floor

  
	
   

  	
  New York, NY 10017

  
						



 

















 


	
  The
  Investors:

  	
  Deerfield
  International Limited

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Darren
  Levine

  	
   

  
	
   

  	
  Name: Darren
  Levine

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $2,655,125.00

  	
   

  
	
  Number of
  Shares: 425,000

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 127,000

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Deerfield International Limited

  
	
   

  	
  Attention: Darren Levine

  
	
   

  	
  780 Third Avenue - 37th Floor

  
	
   

  	
  New York, NY 10017

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Bros. Investments, L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital, L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $214,807.81

  	
   

  
	
  Number of
  Shares: 34,383

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 10,315

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Bros. Investments, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Bros. Investments II, L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital, L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $190,705.00

  	
   

  
	
  Number of
  Shares: 30,525

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 9,158

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Bros. Investments II, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Biotech Fund I, L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital, L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name:  Julian
  Baker

  
	
   

  	
  Title:

  	
   Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $2,129,297.91

  	
   

  
	
  Number of
  Shares: 340,824

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 102,247

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Biotech Fund I, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Biotech Fund II, L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital II, L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital II (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $1,940,942.13

  	
   

  
	
  Number of
  Shares: 310,675

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 93,203

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Biotech Fund II, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Biotech Fund II (Z), L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital II (Z), L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital II (Z) (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $253,504.80

  	
   

  
	
  Number of
  Shares: 40,577

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 12,173

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Biotech Fund II (Z), L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
					



 

















 


	
  The
  Investors:

  	
  Baker
  Biotech Fund III, L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital III, L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital III (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:

  	
  Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $1,876,742.79

  	
   

  
	
  Number of
  Shares: 300,399

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 90,120

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Biotech Fund III, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  Baker
  Biotech Fund III (Z), L.P.

  
	
   

  	
  BY: Baker
  Bros. Capital III (Z), L.P. (general partner)

  
	
   

  	
  BY: Baker
  Bros. Capital III (Z) (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name:   Julian
  Baker

  
	
   

  	
  Title:

  	
    Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $306,771.00

  	
   

  
	
  Number of
  Shares: 49,103

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 14,731

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  Baker Biotech Fund III (Z), L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021

  
						



 

















 


	
  The
  Investors:

  	
  14159,
  L.P.

  
	
   

  	
  BY: 14159
  Capital, L.P. (general partner)

  
	
   

  	
  BY: 14159
  Capital (GP), LLC (general partner)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Julian
  Baker

  	
   

  
	
   

  	
  Name: Julian
  Baker

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Purchase
  Price: $129,498.00

  	
   

  
	
  Number of
  Shares: 20,728

  	
   

  
	
  Number of
  shares of Common

  	
   

  
	
  Stock underlying Warrant: 6,217

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  
	
   

  	
  14159, L.P.

  
	
   

  	
  Attention: Julian Baker

  
	
   

  	
  667 Madison Avenue, 17th Floor

  
	
   

  	
  New York, NY 10021