As
filed with the Securities and Exchange Commission on July 9, 2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________________
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
___________________________________
ZIOPHARM
ONCOLOGY, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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84-1475642
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(State
or other jurisdiction of
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1180
Avenue of the Americas, 19th
Floor
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(I.R.S.
Employer
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Incorporation
or organization)
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New
York, New York 10036
Telephone
(212) 214-0700
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Identification
No.)
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(Address
of principal executive offices)
_________________________________
2003
STOCK OPTION PLAN
(Full
title of the Plan)
_________________________________
Dr.
Jonathan Lewis
Chief
Executive Officer
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th
Floor
New York,
New York 10036
Telephone
(212) 214-0700
(Name
and address of agent for service)
Copy
to:
Alan M.
Gilbert, Esq.
Maslon
Edelman Borman & Brand, LLP
3300
Wells Fargo Center
90 South
7th Street
Minneapolis,
Minnesota 55402
Telephone:
(612) 672-8200
Facsimile: (612)
642-8381
______________________________________
CALCULATION
OF REGISTRATION FEE
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Title
of
Securities
to be Registered
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Proposed
Maximum
Amount
to be
Registered
(1)
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Proposed
Maximum
Offering
Price
Per
Share (2)
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Proposed
Maximum
Aggregate
Offering
Price (2)
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Amount
of
Registration
Fee
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||||||||||||
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Common
Stock, par value $.001 per share
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2,000,000 | $ | 1.465 | $ | 2,930,000.00 | $ | 163.49 | |||||||||
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(1)
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Pursuant
to Rule 416(a), this Registration Statement also covers additional
securities that may be offered as a result of stock splits, stock
dividends, or similar transactions relating to the shares covered by this
registration statement. In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, this registration statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan(s) described
herein.
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(2)
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Estimated
solely for the purpose of determining the registration fee pursuant to
Rule 457(c) and (h) and based upon the average low and high sales prices
of the Registrant’s Common Stock on July 7, 2009, as reported
by the Nasdaq Capital Market.
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(3)
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The
registrant’s 2003 Stock Option Plan (the “2003 Plan”) authorizes the
issuance of a maximum of 6,002,436 shares of the Registrant’s common
stock, of which 4,002,436 shares were previously registered on Forms S-8,
File Nos. 333-129884, 333-134280 and 333-142701, filed on November 22,
2005, May 19, 2006 and May 5, 2007, respectively. The contents
of such prior registration statements are incorporated by reference
herein. This registration statement registers an additional
2,000,000 shares under the 2003
Plan.
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INCORPORATION
OF CONTENTS OF
REGISTRATION
STATEMENT BY REFERENCE
Registration statements on Forms S-8
(File Nos. 333-129884, 333-134280 and 333-142701) were filed with the Securities
and Exchange Commission on November 22, 2005, May 19, 2006 and May 5, 2007,
respectively covering the registration of an aggregate of 4,002,436 shares
initially authorized for issuance under the Registrant’s 2003 Stock Option Plan,
as amended (the “2003 Plan”). Pursuant to Rule 429 and General Instruction E of
Form S-8, this registration statement is being filed to register an additional
2,000,000 shares authorized under the 2003 Plan. This registration statement
should also be considered a post-effective amendment to the prior registration
statements. The contents of the aforementioned registration statements are
incorporated herein by reference.
PART
I
As permitted by the rules of the
Securities and Exchange Commission, this registration statement omits the
information specified in Part I of Form S-8. The documents containing the
information specified in Part I of this registration statement will be sent or
given to eligible employees as specified in Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424
promulgated under the Securities Act.
PART
II
Item
3. Incorporation of Documents by Reference.
The following documents filed by the
Registrant with the Securities and Exchange Commission are hereby incorporated
herein by reference:
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(a)
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Annual
Report on Form 10-K for the fiscal year ended December 31, 2008 filed on
March 23, 2009;
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(b)
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Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 2009 filed on
May 15, 2009;
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(c)
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Current
Reports on Form 8-K filed on June 1, 2009 and June 4, 2009;
and
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(c)
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Registration
Statement on Form SB-2 filed November 14, 2005, as amended by
Post-effective Amendment No. 1 to Form SB-2 filed April 3, 2006 and
Post-effective Amendment No. 2 on Form S-3 to Form SB-2, containing the
description of capital stock as set forth in the section entitled
“Description of Capital Stock,” as such description is amended in the
section entitled “Description of Capital Stock” in Prospectus Supplement
No. 1 filed April 26, 2006 pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended.
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All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
II-1
Item
4. Description of Securities.
Not applicable.
Item
5. Interests of Named Experts and Counsel.
Not applicable.
Item
6. Indemnification of Directors and Officers.
Under
Article 6 of the Registrant’s bylaws, each director and officer of the
Registrant will be indemnified to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director or officer of the Registrant or, while a
director or officer of the Registrant, is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys’ fees) reasonably incurred
by such director or officer. However, the Registrant shall be required to
indemnify a director or officer in connection with a proceeding commenced by
such director or officer only if the commencement of such proceeding (or part
thereof) by the director or officer was authorized by the Board. The
Registrant’s Amended and Restated Certificate of Incorporation also eliminates
the liability of directors of the Registrant for monetary damages to the fullest
extent permissible under Delaware law.
Section
145 of the Delaware General Corporation Law states:
(a) A
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action arising by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he 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
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he 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 reasonable cause to believe that his conduct
was unlawful.
(b) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorneys’ fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense
which the Court of Chancery or such other court shall deem proper.
II-2
The Registrant maintains insurance on
behalf of its officers and directors, insuring them against liabilities that
they may incur in such capacities or arising out of this status.
The above discussion of the
Registrant’s Amended and Restated Certificate of Incorporation and Bylaws and of
Section 145 of the Delaware General Corporation Law is not intended to be
exhaustive and is respectively qualified in its entirety by such Amended and
Restated Certificate of Incorporation, Bylaws and statute.
Item
7. Exemption from Registration Claimed.
Not applicable.
II-3
Item
8. Exhibits.
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Exhibit
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Description
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4.1
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ZIOPHARM
Oncology, Inc. 2003 Stock Option Plan (incorporated by reference to
Exhibit 10.1 to the Registrant’s Registration Statement on Form SB-2, SEC
File No. 333-129020, filed on October 14, 2005)
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4.2
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Amendment
No. 1 to ZIOPHARM Oncology, Inc. 2003 Stock Option Plan (incorporated by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K
filed on April 26, 2006)
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4.3
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Amendment
No. 2 to ZIOPHARM Oncology, Inc. 2003 Stock Option Plan (incorporated by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form
10-QSB filed on May 2, 2007)
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4.4
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Amendment
No. 3 to ZIOPHARM Oncology, Inc. 2003 Stock Option Plan (filed
herewith)
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5.1
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Opinion
of Maslon Edelman Borman & Brand, LLP as to the legality of the
securities being registered (filed
herewith)
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23.1
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Consent
of Independent Registered Public Accounting Firm – Caturano and Company,
P.C. (filed
herewith)
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23.3
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Consent
of Maslon Edelman Borman & Brand, LLP (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature page
hereof)
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Item
9. Undertakings.
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The
Registrant hereby undertakes:
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(a)(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 this
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 this 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
Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and prices 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;
II-4
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(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;
and
(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
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 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 into this Registration Statement 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.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers, and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person
connected with the securities being registered, the registrant 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 Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
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
Boston and the Commonwealth of Massachusetts, on the 9th day of
July, 2009.
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ZIOPHARM
Oncology, Inc.
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By:
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/s/ Richard E. Bagley
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Richard E. Bagley
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President, Chief Operating Officer and
Treasurer
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POWER
OF ATTORNEY
Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Jonathan
Lewis as his true and lawful attorney-in-fact and agent, with full power of
substitution, to sign on his or her behalf individually and in the capacity
stated below and to perform any acts necessary to be done in order to file all
amendments to this Registration Statement and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof. The undersigned also grants to
said attorney-in-fact, full power and authority to do and perform any and all
acts necessary or incidental to the performance and execution of the powers
herein expressly granted. This Power of Attorney shall remain in effect until
revoked in writing by the undersigned.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated:
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Name
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Title
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Date
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/s/ Jonathan Lewis
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Director
and Chief Executive Officer (Principal
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July
9, 2009
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Jonathan
Lewis
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Executive
Officer)
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/s/ Richard E. Bagley
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Director,
President, Chief Operating Officer
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July
9, 2009
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Richard
Bagley
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and
Treasurer (Principal Accounting and
Financial
Officer)
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/s/ Murray Brennan
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Director
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July
9, 2009
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Murray
Brennan
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||||
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/s/ James Cannon
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Director
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July
9, 2009
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James
Cannon
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||||
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/s/ Timothy McInerney
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Director
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July
9, 2009
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Timothy
McInerney
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/s/ Wyche Fowler, Jr.
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Director
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July
9, 2009
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Wyche
Fowler, Jr.
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/s/ Gary S. Fragin
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Director
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July
9, 2009
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Gary
S. Fragin
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/s/ Michael Weiser
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Director
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July
9, 2009
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Michael
Weiser
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II-6
INDEX
TO EXHIBITS
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Exhibit
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Description
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4.4
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Amendment
No. 3 to ZIOPHARM Oncology, Inc. 2003 Stock Option Plan
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5.1
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Opinion
of Maslon Edelman Borman & Brand, LLP as to the legality of the
securities being registered
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23.1
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Consent
of Independent Registered Public Accounting Firm – Caturano and Company,
P.C.
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Exhibit
4.4
ZIOPHARM
Oncology, Inc.
Amendment
No. 3 to
2003
Stock Option Plan
This Amendment No. 3 to 2003 Stock
Option Plan (the “Amendment”) dated as of June
4, 2009, amends the 2003 Stock Option Plan (the “2003 Plan”) of ZIOPHARM Oncology,
Inc. (the “Company”). Except
as otherwise explicitly set forth herein, all provisions of the 2003 Plan shall
remain in full force and effect. Capitalized terms used in this
Amendment without definition shall have the meanings set forth in the 2003
Plan.
WHEREAS, the 2003 Plan
provides that the number of shares of Common Stock which may be issued under the
Plan shall not exceed 4,002,436 shares; and
WHEREAS, an
amendment to the 2003 Plan increasing the number of shares of Common Stock which
may be issued under the Plan to 6,002,436 was adopted by the Company pursuant to
resolutions of the Board of Directors on December 3, 2008 and approved by the
Company’s stockholders at a meeting of the stockholders held on June 4,
2009.
NOW, THEREFORE, the 2003 Plan
is hereby amended as follows:
1. Increase in Number of Shares Subject
to the Plan. Section 5.1 of the 2003 Plan is hereby amended in
its entirety to read as follows:
“5.1. Number of Shares.
Subject to adjustment as provided in Section 10.6, the number of shares of
Common Stock which may be issued under the Plan shall not exceed 6,002,436
shares of Common Stock. Shares of Common Stock that are issued under
the Plan or are subject to outstanding Incentives will be applied to reduce the
maximum number of shares of Common Stock remaining available for issuance under
the Plan.”
2. Effective Date. This Amendment
shall be effective upon the date first written above.
IN WITNESS WHEREOF, the
Company has caused this Amendment to be executed by the undersigned officer,
thereunto duly authorized pursuant to the resolutions of the Board of
Directors.
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ZIOPHARM
Oncology, Inc.:
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By:
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/s/
Richard E. Bagley
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Richard
E. Bagley, President,
Chief
Operating
Officer and
Treasurer
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Exhibit
5.1
July 9,
2009
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 19th
Floor
New York,
New York 10036
Re: Registration
Statement on Form S-8
Ladies
and Gentlemen:
We have
acted on behalf of ZIOPHARM Oncology, Inc. (the “Company”) in connection with a
Registration Statement on Form S-8 (the “Registration Statement”) filed by the
Company with the Securities and Exchange Commission relating to registration of
2,000,000 shares of Common Stock, $.001 par value, issued or to be issued by the
Company (the “Shares”), pursuant to the terms of the Company’s 2003 Stock Option
Plan, as amended (the “Plan”). Upon examination of such corporate documents and
records as we have deemed necessary or advisable for the purposes hereof, it is
our opinion that:
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1.
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The
Company is a validly existing corporation in good standing under the laws
of the State of Delaware.
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2.
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The
Shares, when issued and paid for as contemplated by the Plan, and when
delivered against payment thereof in the manner contemplated by the Plan,
will be validly issued, fully paid and
non-assessable.
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We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement.
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Very
truly yours,
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/s/
Maslon Edelman Borman & Brand,
LLP
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Exhibit
23.1
CONSENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
As
independent registered public accountants, we hereby consent to the use of the
report of Vitale, Caturano & Company, P.C. (whose name has been changed
to Caturano and Company, P.C. effective May 1, 2009) dated March 23,
2009 relating to the financial statements of ZIOPHARM Oncology, Inc. as of
December 31, 2008 and 2007, and for the three years ended December 31, 2008 and
from September 9, 2003 (date of inception) through December 31, 2008 (which
report expresses an unqualified opinion), incorporated by reference in
this Registration Statement on Form S-8.
/s/
Caturano and Company, P.C.
Caturano
and Company, P.C.
July 9,
2009