As
filed with the Securities and Exchange Commission on May 19,
2006
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
|
1180
Avenue of the Americas, 19th
Floor
|
(I.R.S.
Employer
|
|
Incorporation
or organization)
|
New
York, New York 10036
Telephone
(646) 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
|
750,000
|
$5.565
|
$4,173,750
|
$446.59
|
|
(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 May 16, 2006, 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.
1
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, 2005
filed on
March 20, 2006, as amended by Form 10-KSB/A filed on April 12,
2006;
|
|
(a)
|
Quarterly
Report on Form 10-QSB for the fiscal quarter ended March 31, 2006
filed on
May 15, 2006;
|
|
(b)
|
Current
Reports on Form 8-K filed on April 26, 2006 and May 3, 2006;
and
|
|
(c)
|
Registration
Statement on Form SB-2 filed November 14, 2005 (SEC File No. 333-129680),
as amended by Post-effective Amendment No. 1 to Form SB-2 filed April
3,
2006, 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, 2006pursuant to Rule
424(b)
promulgated under the Securities Act of 1933, as
amended.
|
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, 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.
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.
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-2
Item
8. Exhibits.
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Exhibit
|
Description
|
|
|
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)
|
|
|
4.2
|
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)
|
|
|
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.
|
|
|
23.3
|
Consent
of Maslon Edelman Borman & Brand, LLP (included in Exhibit
5.1)
|
|
|
24.1
|
Power
of Attorney (included on signature page
hereof)
|
Item
9. Undertakings.
|
(a)
|
The
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 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;
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
II-3
(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.
(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 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-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 19th day of May, 2006.
| ZIOPHARM Oncology, Inc. | ||
| |
|
|
| 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:
|
Name
|
Title
|
Date
|
|
|
/s/
Jonathan Lewis
|
Director
and Chief Executive Officer
|
May
19, 2006
|
|
|
Jonathan
Lewis
|
(Principal
Executive Officer)
|
||
|
/s/
Richard Bagley
|
Director,
President, Treasurer and Chief Operating Officer
|
May
19, 2006
|
|
|
Richard
Bagley
|
(Principal
Accounting and Financial Officer)
|
||
|
|
Director
|
May
19, 2006
|
|
|
Murray
Brennan
|
|||
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/s/
James Cannon
|
Director
|
May
19, 2006
|
|
|
James
Cannon
|
|||
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/s/
Timothy McInerney
|
Director
|
May
19, 2006
|
|
|
Timothy
McInerney
|
|||
|
/s/
Wyche Fowler, Jr.
|
Director
|
May
19, 2006
|
|
|
Wyche
Fowler, Jr.
|
|||
|
/s/
Gary S. Fragin
|
Director
|
May
19, 2006
|
|
|
Gary
S. Fragin
|
|||
|
/s/
Michael Weiser
|
Director
|
May
19, 2006
|
|
|
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.
|
EXHIBIT
5.1
May
19,
2006
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
750,000 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:
| 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 registered public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 9, 2006 relating to the financial statements of ZIOPHARM Oncology, Inc.
for the year ended December 31, 2005 (which contained an explanatory fourth
paragraph regarding a going concern), and to all references to
our
firm, included in or made part of this registration statement on Form S-8.
| |
|
|
| /s/ Vitale Caturano & Company, Ltd. | ||
Boston,
Massachusetts
May
18,
2006