As filed with the Securities and Exchange Commission on September 13, 2016.

Registration No. 333-          

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D. C. 20549

Form S-8

REGISTRATION STATEMENT UNDER THE

SECURITIES ACT OF 1933

SUN BIOPHARMA, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	87-0543922
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)
712 Vista Blvd #305 Waconia, MN	55387
(Address of Principal Executive Offices)	(Zip Code)

Sun BioPharma, Inc. 2011 Stock Option Plan

Sun BioPharma, Inc. 2016 Omnibus Incentive Plan

(Full Title of the Plan)

Scott Kellen

Chief Financial Officer

Sun BioPharma, Inc.

712 Vista Blvd #305

Waconia, MN 55387

(Name and Address of Agent for Service)

Telephone number, including area code, of agent for service: (952) 479-1196

Copies to:

W. Morgan Burns

Joshua L. Colburn

Faegre Baker Daniels LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, Minnesota 55402-3901

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company (as defined in Rule 12b-2 of the Exchange Act):

Large Accelerated Filer ☐   Accelerated Filer ☐   Non-accelerated Filer ☐   Smaller Reporting Company ☑

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered	Amount to be Registered(1)	Proposed Maximum Offering Price per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, $0.001 par value
2011 Stock Option Plan	3,163,600 (2)	$0.270  (4)	$854,172	$86.02
2016 Omnibus Incentive Plan	15,000,000 (3)	$2.505 (5)	$37,575,000	$3,783.81
TOTAL:	18,163,300		$38,429,172	$3,869.83

(1) Pursuant to Rule 416(c), this Registration Statement covers any additional shares of common stock that become issuable under the Sun BioPharma, Inc. 2011 Stock Option Plan, as amended (the “2011 Plan”) and the Sun BioPharma, Inc. 2016 Omnibus Incentive Plan, as amended (the “2016 Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding shares of the Registrant’s common stock.

(2) Represents shares of Common Stock reserved for issuance pursuant to stock option awards outstanding under the 2011 Plan as of the date of this Registration Statement.

(3) Represents shares of Common Stock reserved for issuance for future awards under the 2016 Plan.

(4) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, as amended. The price per share represents the weighted average exercise price for the options outstanding under the 2011 Plan.

(5) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based on the average high and low sales prices of the registrant’s common stock as reported by OTC Markets Group, Inc. on September 12, 2016.

SUN BIOPHARMA, INC.

EXPLANATORY NOTE

On January 22, 2013, the stockholders of Sun BioPharma, Inc. (the “Company”) approved the issuance of the equivalent of up to 8,000,000 shares of the Company’s common stock, $0.001 par value (“Common Stock”), under the Company’s 2011 Stock Option Plan (the “2011 Plan”). On May 17, 2016, the Company’s stockholders approved the issuance of up to 15,000,000 shares of Common Stock under the 2016 Omnibus Incentive Plan (the “2016 Plan”). This registration statement is being filed to register 3,163,600 shares of Common Stock for issuance pursuant to outstanding awards under the 2011 Plan and 15,000,000 shares of Common Stock, for issuance pursuant to future awards under the 2016 Plan.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.    Incorporation of Documents by Reference.

The following documents previously filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are, as of their respective dates, incorporated by reference in this Registration Statement:

(a) The Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2015 (which incorporates by reference certain portions of the Company’s definitive proxy statement for the Company’s 2016 Annual Meeting of Shareholders);

(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to in (a) above (other than information deemed to have been “furnished” rather than “filed” in accordance with the Commission’s rules).

(c) The descriptions of the Company’s Common Stock contained in registration statements filed pursuant to the Exchange Act, together with any amendments or reports filed for the purpose of updating those descriptions.

In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this registration statement and before the filing of a post-effective amendment (other than information deemed to have been “furnished” rather than “filed” in accordance with the Commission’s rules) that indicates that all shares of Common Stock offered have been sold, or that deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference in, and to be a part of, this registration statement from the date of filing of those documents.

Any statement contained in a document incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or incorporated herein by reference or in any other subsequently filed document that is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4.    Description of Securities.

Not Applicable.

Item 5.    Interests of Named Experts and Counsel.

None.

Item 6.    Indemnification of Directors and Officers.

 Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person made a party to an action by reason of the fact that he or she was a director, executive officer, employee or agent of the corporation or is or was serving at the request of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. However, in the case of an action by or in right of the corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable to the corporation.

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Our certificate of incorporation and amended and restated bylaws limit the liability of our directors to the fullest extent permitted by Delaware law. Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for any:

● breach of their duty of loyalty to us or our stockholders;

● act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

● unlawful payment of dividends or redemption of shares as provided in Section 174 of the Delaware General Corporation Law; or

● transaction from which the directors derived an improper personal benefit.

These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies such as injunctive relief or rescission. Our amended and restated bylaws provide that we will indemnify our directors and executive officers, and may indemnify other officers, employees and other agents, to the fullest extent permitted by law.

As permitted by the Delaware General Corporation Law, we have entered into indemnification agreements with each of our directors and executive officers that require us to indemnify such persons against expenses, judgments, penalties, fines, settlements and other amounts actually and reasonably incurred, including expenses of a derivative action, in connection with an actual or threatened proceeding if any of our directors or executive officers may be made a party because he or she is or was one of our directors. We will be obligated to pay such amounts only if the director acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to our best interests. With respect to any criminal proceeding, we will be obligated to pay such amounts only if the director had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification.

Section 145(g) of the Delaware General Corporation Law permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation arising out of his or her actions in connection with their services to us, regardless of whether our amended and restated bylaws permit indemnification. We have purchased and intend to maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.

Item 7.    Exemption from Registration Claimed.

Not Applicable.

Item 8.    Exhibits.

Exhibit Number	Description of Exhibit
4.1	Certificate of Incorporation, as amended on May 26, 2016 (incorporated by reference to Exhibit 3.1 to quarterly report on Form 10-Q for the quarter ended June 30, 2016)
4.2	Bylaws, as amended on May 26, 2016 (incorporated by reference to Exhibit 3.2 to quarterly report on Form 10-Q for the quarter ended June 30, 2016)
5.1+	Opinion of Faegre Baker Daniels LLP
23.1+	Consent of Independent Registered Public Accounting Firm (Cherry Bekaert LLP)
23.2+	Consent of Faegre Baker Daniels LLP (included in Exhibit 5.1)
99.1	Sun BioPharma, Inc. 2011 Stock Option Plan (incorporated by reference to Exhibit 10.1 on Form 8-K filed September 11, 2015)
99.2	Sun BioPharma, Inc. 2016 Omnibus Incentive Plan (incorporated by reference to Appendix E to definitive proxy statement on Schedule 14A filed April 11, 2016)

+ Filed herewith

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Item 9.     Undertakings.

 A.    The Company hereby undertakes:

  (1)     To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

    (i)     To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

    (ii)     To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

    (iii)     To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) above do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement; and

  (2)     That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

  (3)     To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 B.     The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 C.     Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such.

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on September 13, 2016.

SUN BIOPHARMA, INC.
By:	/s/ David B. Kaysen
	Name: David B. Kaysen
	Title: President and Chief Executive Officer

POWER OF ATTORNEY

We, the undersigned officers and directors of Sun BioPharma, Inc., hereby severally constitute Michael T. Cullen, David B. Kaysen and Scott Kellen, and each of them singly, as true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names, in the capacities indicated below the registration statement filed herewith and any amendments to said registration statement, and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Sun BioPharma, Inc. to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities indicated on September 13, 2016:

Signature	Title
/s/ David B. Kaysen	President, Chief Executive Officer and Director
David B. Kaysen	(principal executive officer)
/s/ Scott Kellen	Vice President of Finance, Chief Financial Officer, Treasurer and Secretary
Scott Kellen	(principal financial and accounting officer)
/s/ Michael T. Cullen	Executive Chairman and Director
Michael T. Cullen
/s/ Suzanne Gagnon	Director
Suzanne Gagnon
/s/ Dalvir S. Gill	Director
Dalvir S. Gill
/s/ Jeffrey S. Mathiesen	Director
Jeffrey S. Mathiesen
/s/ J. Robert Paulson, Jr.	Director
J. Robert Paulson, Jr.
/s/ Paul W. Schaffer	Director
Paul W. Schaffer
/s/ D. Robert Schemel	Director
D. Robert Schemel

INDEX TO EXHIBITS

No.	Description	Manner of Filing
4.1	Certificate of Incorporation, as amended on May 26, 2016	Incorporated by Reference
4.2	Bylaws, as amended on May 26, 2016	Incorporated by Reference
5.1	Opinion of Faegre Baker Daniels LLP	Filed Electronically
23.1	Consent of Independent Registered Public Accounting Firm (Cherry Bekaert LLP)	Filed Electronically
23.2	Consent of Faegre Baker Daniels LLP	Contained in Exhibit 5.1 to this Registration Statement
24.1	Powers of Attorney	Included on Signature Page
99.1	Sun BioPharma, Inc. 2011 Stock Option Plan	Incorporated by Reference
99.2	Sun BioPharma, Inc. 2016 Omnibus Incentive Plan	Incorporated by Reference