As
filed with the Securities and Exchange Commission on November 22,
2005
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)
|
Delaware
|
84-1475642
|
|
|
(State
or other jurisdiction of
|
|
(I.R.S.
Employer
|
|
Incorporation
or organization)
|
1180
Avenue of the Americas, 19th
Floor
New
York, New York 10036
Telephone
(212) 214-0700
|
Identification
No.)
|
(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
(646) 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
|
Title
of
Securities
to be Registered
|
Proposed
Maximum Amount to be
Registered
|
Proposed
Maximum
Offering
Price
Per
Share (1)
|
Aggregate
Offering
Price (1)
|
Amount
of
Registration
Fee
|
|
Common
Stock, par value $.001 per share
|
1,252,435
|
$4.50
|
$5,635,958
|
$663.35
|
| (1) |
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 November 16, 2005, as reported on the
OTC bulletin board.
|
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) 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 by reference herein:
|
(a)
|
Annual
Report on Form 10-KSB for the fiscal year ended December 31, 2004
filed on
March 31, 2005;
|
|
(b)
|
Prospectus
filed on November 18, 2005 pursuant to Rule 424(b) promulgated
under the
Securities Act of 1933, as amended, which prospectus contains the
Registrant’s audited financial
statements;
|
|
(c)
|
Quarterly
Report on Form 10-QSB for the quarter ended March 31, 2005 filed
on May
13, 2005;
|
|
(d)
|
Quarterly
Report on Form 10-QSB for the quarter ended June 30, 2005 filed
on August
12, 2005, and as amended on August 15, 2005;
|
|
(e)
|
Quarterly
Report on Form 10-QSB for the quarter ended September 30, 2005
filed on
November 10, 2005;
|
|
(f)
|
Current
Reports on Form 8-K filed on August 9, 2005, August 24, 2005 and
September
19, 2005; and
|
|
(g)
|
Registration
Statement on Form SB-2 filed November 14, 2005, containing the
description
of capital stock as set forth in the section entitled “Description of
Capital Stock”
|
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.
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, directors and officers will be indemnified
to the fullest extent permitted by applicable law is it presently exists
or may
hereafter be amended, who was or is made or is threatened, pending or completed
actions, suits or proceedings, whether civil, or criminal, administrative
or
investigative (other than an action arising by or in the right of the
Registrant), if such director or officer has been wholly successful on the
merits or otherwise, or is found to have acted in good faith and in a manner
he
or she reasonably believes to be in or not opposed to the best interests
of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. In addition,
directors and officers will be indemnified for reasonable expenses in connection
with threatened, pending or completed actions or suits by or in the right
of
Registrant if such director or officer has been wholly successful on the
merits
or otherwise, or is found to have 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
Registrant, except in the case of certain findings by a court that such person
is liable for negligence or misconduct in his or her duty to the Registrant
unless such court or the Delaware Court of Chancery also finds that such
person
is nevertheless fairly and reasonably entitled to indemnity. The Registrant’s
Certificate of Incorporation also eliminates the liability of directors of
the
Registrant for monetary damages to the fullest extent permissible under Delaware
law.
II-1
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.
Item
7. Exemption from Registration Claimed.
Not
applicable.
II-2
Item
8. Exhibits.
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Exhibit
|
Description
|
|
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4.1
|
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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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 - Vitale, Caturano
&
Company, Ltd.
|
|
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23.2
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Consent
of Independent Registered Public Accounting Firm - Cordovano and
Honeck,
LLP
|
|
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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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(a)
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The
undersigned registrant 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;
(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) 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.
(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 in the 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.
II-3
(c) 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 Act 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 Act and will be governed by the final adjudication
of
such issue.
II-4
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 New
York and the State of New York on the 22nd
day of
November, 2005.
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ZIOPHARM
Oncology, Inc.
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||
| |
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| By: | /s/ Jonathan Lewis | |
|
Jonathan Lewis |
||
| Chief Executive Officer | ||
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
|
Title
|
Date
|
||
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/s/
Jonathan Lewis
|
Director
and Chief Executive Officer (Principal Executive Officer)
|
November
22, 2005
|
||
|
Jonathan
Lewis
|
||||
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/s/
Richard Bagley
|
Director,
President, Treasurer and Chief Operating Officer (Principal Accounting
and
Financial Officer)
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November
22, 2005
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||
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Richard
Bagley
|
||||
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/s/
Murray Brennan
|
Director
|
November
22, 2005
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||
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Murray
Brennan
|
||||
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|
Director
|
November
22, 2005
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||
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James
Cannon
|
||||
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/s/
Timothy McInerney
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Director
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November
22, 2005
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||
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Timothy
McInerney
|
||||
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/s/
Wyche Fowler, Jr.
|
Director
|
November
22, 2005
|
||
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Wyche
Fowler, Jr.
|
||||
|
|
Director
|
November
22, 2005
|
||
|
Gary
S. Fragin
|
||||
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/s/
Michael Weiser
|
Director
|
November
22, 2005
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||
|
Michael
Weiser |
II-5
INDEX
TO EXHIBITS
|
Exhibit
|
Description
|
|
|
5.1
|
Opinion
of Maslon Edelman Borman & Brand, LLP as to the legality of the
securities being registered
|
|
|
23.1
|
Consent
of Independent Registered Public Accounting Firm - Vitale, Caturano
&
Company, Ltd.
|
|
|
23.2
|
Consent
of Independent Registered Public Accounting Firm - Cordovano and
Honeck,
LLP
|
|
|
23.3
|
Consent
of Maslon Edelman Borman & Brand, LLP (included in Exhibit
5.1)
|
|
|
24.1
|
Power
of Attorney (included on signature page
hereof)
|
EXHIBIT
5.1
November
21, 2005
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
1,252,435 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 (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:
| 1. |
The
Company is a validly existing corporation in good standing under
the laws
of the State of Delaware.
|
| 2. |
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.
|
We
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement.
| Very truly yours, | ||
|
/s/
Maslon Edelman Borman & Brand,
LLP
|
EXHIBIT
23.1
VITALE,
CATURANO & COMPANY Ltd.
Consent
Of Independent Registered Public Accounting Firm
As
independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report, dated August 5, 2005
(except for Note 10 as to which the date is September 13, 2005), relating
to the
financial statements of ZIOPHARM, Inc., included in ZIOPHARM Oncology, Inc.’s
registration statement on Form SB-2 filed on November 14, 2005, and to all
references to our firm included in this registration statement.
| /s/ Vitale Caturano & Company, Ltd. | ||
| Boston, Massachusetts | ||
|
November
22, 2005
|
||
EXHIBIT
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Securities
and Exchange Commission
Washington,
DC
We
consent to the use in this Registration Statement of ZIOPHARM Oncology,
Inc.
(formerly EasyWeb, Inc.) on Form SB-2, of our report dated February 19,
2005,
appearing in the Prospectus.
We
also
consent to the reference to us under the heading “Experts” in such Prospectus.
| |
|
|
| Date: November 22, 2005 | /s/ Cordovano and Honeck LLP | |
|
Cordovano and Honeck LLP |
||
| Denver, Colorado | ||