UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of
report (date of earliest event reported): April 26, 2006
ZIOPHARM
Oncology, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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0-32353
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84-1475642
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1180
Avenue of the Americas, 19th
Floor
New
York, NY 10036
(Address
of principal executive offices) (Zip Code)
(646)
214-0700
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule
13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement.
Adoption
of Amendment to 2003 Stock Option Plan
At
the
Company’s annual stockholders’ meeting held on April 26, 2006, the Registrant’s
stockholders approved the adoption of an amendment (the “Amendment”) to the 2003
Stock Option Plan (the “2003 Plan”) that increases the number of shares of
common stock available for issuance under the 2003 Plan from 1,252,436 shares
to
2,002,436 shares. A copy of the Amendment is filed as Exhibit 10.1 to this
report.
Grant
of Stock Options to Director and Officers
Effective
upon the approval of the Amendment by the Company stockholders on April 26,
2006, as discussed above, the Company granted stock options to each of its
six
non-employee directors to purchase 15,000 shares of the Company’s common stock.
Each such stock option was granted under the 2003 Plan, was vested with respect
to all shares on the date of grant and has an exercise price per share equal
to
$5.01. Otherwise, each such stock option was granted in substantially in the
form attached as Exhibit 10.10 to the Registrant’s Annual Report on Form 10-KSB
(SEC File No. 000-32353) filed March 20, 2006.
Also
effective upon the approval of the Amendment by the Company stockholders on
April 26, 2006, as discussed above, the Company granted stock options, each
with
an exercise price per share equal to $5.01, to the following officers in the
amounts and subject to the vesting provisions set forth below:
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Name
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Title
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No.
of Options
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Vesting
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|||
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Jonathan
Lewis
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Chief
Executive Officer
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214,315
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100%
upon date of grant
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Richard
E. Bagley
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President,
Chief Operating Officer and Treasurer
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54,873
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100%
upon date of grant
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40,000
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50%
upon date of grant and 50% on December 14, 2006
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Robert
Peter Gale
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Senior
Vice President Research
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25,000
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50%
upon date of grant and 50% on December 14,
2006
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Otherwise,
each such stock option was granted in substantially in the form attached as
Exhibit 10.8 to the Registrant’s Annual Report on Form 10-KSB (SEC File No.
000-32353) filed March 20, 2006.
Item
8.01. Other
Events.
Adoption
of Amended and Restated Certificate of Incorporation
At
the
Company’s annual stockholders’ meeting held on April 26, 2006, the Registrant’s
stockholders approved the adoption of an Amended and Restated Certificate of
Incorporation for the Company, in the form attached as Exhibit 3.1 to this
report. A proposal regarding the adoption of the Amended and Restated
Certificate of Incorporation was included in the Company’s proxy for the
stockholders’ meeting filed with the Securities and Exchange Commission. The
Amended and Restated Certificate of Incorporation was filed with the Delaware
Secretary of State on April 26, 2006.
Item
9.01 Financial Statements and Exhibits.
| (d) |
Exhibits.
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| 3.1 |
Amended
and Restated Certificate of Incorporation filed , as filed with the
Delaware Secretary of State on April 26, 2006.
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| 10.1 | Amendment No. 1 to 2003 Stock Incentive Plan of ZIOPHARM Oncology, Inc. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ZIOPHARM
Oncology,
Inc.:
(Registrant)
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| Date: April 26, 2006 | By: | /s/ Jonathan Lewis |
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Jonathan Lewis, Chief Executive Officer |
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Exhibit
Index
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Exhibit
No.
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Description
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3.1
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Amended
and Restated Certificate of Incorporation filed , as filed with the
Delaware Secretary of State on April 26, 2006.
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10.1
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Amendment
No. 1 to 2003 Stock Incentive Plan of ZIOPHARM Oncology,
Inc.
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Exhibit
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
of
ZIOPHARM
Oncology, Inc.
ZIOPHARM
Oncology, Inc., a corporation organized and existing under the laws of the
State
of Delaware, hereby certifies as follows:
1. The
name
of the corporation is ZIOPHARM Oncology, Inc., formerly known as EasyWeb, Inc.
The date of filing of its original Certificate of Incorporation with the
Secretary of State was May 16, 2005.
2. That
the
Board of Directors of the corporation adopted resolutions, in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware, setting
forth a proposed Amended and Restated Certificate of Incorporation (the “Amended
and Restated Certificate”), declaring the Amended and Restated Certificate to be
advisable. The resolution setting forth the proposed Amended and Restated
Certificate is as follows:
“RESOLVED,
that, subject to the approval of the holders of a majority of the outstanding
shares of the Corporation’s common stock, par value $.001 per share (the “Common
Stock”), the Corporation’s Amended Certificate of Incorporation shall be amended
and restated in the manner set forth on the attached Exhibit A.”
[Please
see Exhibit A attached hereto.]
3. This
Amended and Restated Certificate was duly adopted by vote of the stockholders
of
the Corporation in accordance with the provisions of Sections 222, 242 and
245
of the General Corporation Law of the State of Delaware.
4. That
the
Amended and Restated Certificate was duly adopted in accordance with the
applicable provisions of Sections 222, 242 and 245 of the General Corporation
Law of the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this document to be executed in
its
corporate name as of this 26th
day of
April, 2006.
| ZIOPHARM Oncology, Inc. | ||
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| By: | /s/ Jonathan Lewis | |
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Jonathan Lewis, Chief Executive Officer |
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EXHIBIT
A
1. Name.
The name
of the corporation is ZIOPHARM Oncology, Inc. (the “Corporation”).
2. Address;
Registered Office and Agent.
The
address of the Corporation’s registered office is 2711 Centerville Road Suite
400, Wilmington, Delaware 19808. The Corporation may from time to time, in
the
manner provided by law, change the registered agent and the registered office
within the State of Delaware. The Corporation may also maintain offices for
the
conduct of its business, either within or without the State of
Delaware.
3. Purposes.
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
4. Number
of Shares.
The
total number of shares of all classes of stock that the Corporation shall have
authority to issue is Two Hundred Eighty Million (280,000,000) shares consisting
of: Two Hundred Fifty Million (250,000,000) shares of common stock, $.001 par
value per share (“Common Stock”); and Thirty Million (30,000,000) shares of
preferred stock, $.001 par value per share (“Preferred Stock”).
The
Preferred Stock may be divided into, and may be issued from time to time in
one
or more series. The Board of Directors of the Corporation (the “Board”) is
authorized from time to time to establish and designate any such series of
Preferred Stock, to fix and determine the variations in the relative rights,
preferences, privileges and restrictions as between and among such series and
any other class of capital stock of the Corporation and any series thereof,
and
to fix or alter the number of shares comprising any such series and the
designation thereof. The authority of the Board from time to time with respect
to each such series shall include, but not be limited to, determination of
the
following:
a. The
designation of the series;
b. The
number of shares of the series and (except where otherwise provided in the
creation of the series) any subsequent increase or decrease
therein;
c. The
dividends, if any, for shares of the series and the rates, conditions, times
and
relative preferences thereof;
d. The
redemption rights, if any, and price or prices for shares of the
series;
e. The
terms
and amounts of any sinking fund provided for the purchase or redemption of
the
series;
f. The
relative rights of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;
g. Whether
the shares of the series shall be convertible into shares of any other class
or
series of shares of the Corporation, and, if so, the specification of such
other
class or series, the conversion prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and
all
other terms and conditions upon which such conversion may be made;
h. The
voting rights, if any, of the holders of such series; and
i. Such
other designations, powers, preference and relative, participating, optional
or
other special rights and qualifications, limitations or restrictions
thereof.
5. Election
of Directors.
Unless
and except to the extent that the by-laws of the Corporation (the “By-laws”)
shall so require, the election of directors of the Corporation need not be
by
written ballot.
6. Limitation
of Liability.
To the
fullest extent permitted under the General Corporation Law, as amended from
time
to time, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Any amendment, repeal or modification of the foregoing
provision shall not adversely affect any right or protection of a director
of
the Corporation hereunder in respect of any act or omission occurring prior
to
the time of such amendment, repeal or modification.
7. Indemnification.
7.1 Right
to Indemnification.
The
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be amended, any person
(a “Covered Person”) 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 (a “Proceeding”), 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 Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity (an “Other
Entity”), including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys’ fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in Section 7.3, the Corporation shall be required to
indemnify a Covered Person in connection with a Proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such Proceeding
(or
part thereof) by the Covered Person was authorized by the Board.
7.2 Prepayment
of Expenses.
The
Corporation shall pay the expenses (including attorneys’ fees) incurred by a
Covered Person in defending any Proceeding in advance of its final disposition,
provided, however, that, to the extent required by applicable law, such payment
of expenses in advance of the final disposition of the Proceeding shall be
made
only upon receipt of an undertaking by the Covered Person to repay all amounts
advanced if it should be ultimately determined that the Covered Person is not
entitled to be indemnified under this Article 7 or otherwise.
7.3 Claims.
If a
claim for indemnification or advancement of expenses under this Article 7 is
not
paid in full within 30 days after a written claim therefor by the Covered Person
has been received by the Corporation, the Covered Person may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any
such
action the Corporation shall have the burden of proving that the Covered Person
is not entitled to the requested indemnification or advancement of expenses
under applicable law.
7.4 Nonexclusivity
of Rights.
The
rights conferred on any Covered Person by this Article 7 shall not be exclusive
of any other rights that such Covered Person may have or hereafter acquire
under
any statute, provision of this Certificate of Incorporation, the By-laws,
agreement, vote of stockholders or disinterested directors or
otherwise.
7.5 Other
Sources.
The
Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of an Other Entity shall be reduced by any amount such Covered
Person may collect as indemnification or advancement of expenses from such
Other
Entity.
7.6 Amendment
or Repeal.
Any
repeal or modification of the foregoing provisions of this Article 7 shall
not
adversely affect any right or protection hereunder of any Covered Person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
7.7 Other
Indemnification and Prepayment of Expenses.
This
Article 7 shall not limit the right of the Corporation, to the extent and in
the
manner permitted by applicable law, to indemnify and to advance expenses to
persons other than Covered Persons when and as authorized by appropriate
corporate action.
8. Adoption,
Amendment and/or Repeal of By-Laws.
In
furtherance and not in limitation of the powers conferred by the laws of the
State of Delaware, the Board is expressly authorized to make, alter and repeal
the By-laws, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law whether adopted by them or otherwise.
9. Certificate
Amendments.
The
Corporation reserves the right at any time, and from time to time, to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, and other provisions authorized by the laws of
the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by applicable law; and all rights, preferences
and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this article.
Exhibit
10.1
ZIOPHARM
Oncology, Inc.
Amendment
No. 1 to
2003
Stock Option Plan
This
Amendment No. 1 to 2003 Stock Option Plan (the “Amendment”)
dated
as of April 26, 2006, 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 was adopted by the Company pursuant to resolutions of the Board of
Directors of ZIOPHARM, Inc., the Company’s predecessor, as of December 30, 2003
and approved by ZIOPHARM, Inc.’s stockholders as of December 21,
2004;
WHEREAS,
pursuant to a merger transaction that became effective in September 2005, a
wholly owned subsidiary of the Company merged with and into ZIOPHARM, Inc.,
with
ZIOPHARM, Inc. remaining as the surviving entity and a wholly owned operating
subsidiary of the Company, after which ZIOPHARM, Inc. merged with and into
the
Company, with the Company remaining as the surviving corporation (such merger
transactions are collectively referred to as the “Merger”);
WHEREAS,
immediately prior to the Merger, the number of shares of ZIOPHARM, Inc. common
stock available for issuance under the 2003 Plan was 2,500,000;
WHEREAS,
upon
the Merger, the Company assumed the 2003 Plan and, as a result of the conversion
ratio applicable to the Merger, the number of shares of the Company’s common
stock available for issuance under the 2003 Plan immediately following the
Merger was 1,252,436;
WHEREAS,
an
amendment to the 2003 Plan increasing the number of shares of the Company’s
common stock available for issuance thereunder to 2,002,436 was adopted by
the
Company pursuant to resolutions of the Board of Directors on February 22, 2006
and approved by the Company’s stockholders at a meeting of the stockholders held
on April 26 2006; and
WHEREAS,
pursuant to Section 10.11 of the 2003 Plan, the 2003 Plan may be amended upon
approval of the Board of Directors of the Company, and pursuant to resolutions
adopted by the Board of Directors on February 22, 2006, the Company has
determined that it is in the best interests of the Company to amend the Plan
as
hereinafter provided.
NOW,
THEREFORE,
the
Plan is hereby amended as follows:
1. Increase
in Number of Shares Subject to the Plan.
Section
5.1 of the 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 2,002,436 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.:
By: /s/
Jonathan Lewis
Name:
Jonathan Lewis
Title: Chief
Executive Officer
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