Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
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FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR 12(g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
(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
of Incorporation or Organization)
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(I.R.S.
Employer Identification no.)
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1180
Avenue of the Americas, 19th
Floor
New
York, New York
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10036
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(Address
of Principal Executive Offices)
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(Zip
Code)
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If
this form relates to the registration of a class of securities pursuant
to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. :
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If
this form relates to the registration of a class of securities pursuant
to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box: 9
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Securities
Act registration statement file number to which this form
relates:
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N/A
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(If
applicable)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of Each Class
to
be so Registered
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Name
of Each Exchange on Which
Each
Class is to be Registered
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Common
Stock, par value $.001 per share
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The
NASDAQ Stock Market, LLC
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Securities
to be registered pursuant to Section 12(g) of the Act:
Item
1. Description
of Registrant’s Securities to be Registered.
Common
Stock
Pursuant
to the registrant’s certificate of incorporation, as amended and restated to
date (the “Certificate of Incorporation”), the registrant’s authorized capital
stock consists of 280,000,000 shares, comprised of 250,000,000 shares of common
stock, par value $.001 per share, and 30,000,000 shares of preferred stock,
par
value $.001 per share. As of August 14, 2006, there were 15,264,248 shares
of
the registrant’s common stock and no shares of the registrant’s preferred stock
issued and outstanding.
Voting.
The
holders of the registrant’s common stock are entitled to one vote for each
outstanding share of common stock owned by such stockholder on every matter
properly submitted to the stockholders for their vote. Stockholders are not
entitled to vote cumulatively for the election of directors.
Dividend
Rights.
Holders
of the registrant’s common stock are entitled to receive ratably dividends and
other distributions of cash or any other right or property as may be declared
by
the registrant’s Board of Directors out of our assets or funds legally available
for such dividends or distributions. The dividend rights of holders of common
stock are subject to the dividend rights of the holders of any series of
preferred stock that may be issued and outstanding from time to
time.
Liquidation
Rights.
In the
event of any voluntary or involuntary liquidation, dissolution or winding up
of
our affairs, holders of the registrant’s common stock would be entitled to share
ratably in the registrant’s assets that are legally available for distribution
to stockholders after payment of liabilities. If the registrant has any
preferred stock outstanding at such time, the holders of such preferred stock
may be entitled to distribution and/or liquidation preferences that require
the
registrant to pay the applicable distribution to the holders of preferred stock
before paying distributions to the holders of common stock.
Conversion,
Redemption and Preemptive Rights.
Holders
of the registrant’s common stock have no conversion, redemption, preemptive,
subscription or similar rights.
Preferred
Stock
Under
the
Certificate of Incorporation, the registrant’s Board of Directors is authorized,
subject to limitations prescribed by law, to issue up to 30,000,000 shares
of
preferred stock in one or more series without further stockholder approval.
The
Board of Directors has discretion to determine the rights, preferences,
privileges and restrictions of, including, without limitation, voting rights,
dividend rights, conversion rights, redemption privileges and liquidation
preferences of, and to fix the number of shares of, each series of our preferred
stock.
Limitations
on Directors’ Liability
The
Certificate of Incorporation and the registrant’s bylaws contain provisions
indemnifying the registrant’s directors and officers to the fullest extent
permitted by law. In addition, as permitted by Delaware law, the Certificate
of
Incorporation provides that no director will be liable to the registrant or
its
stockholders for monetary damages for breach of certain fiduciary duties as
a
director. The effect of this provision is to restrict the registrant’s rights
and the rights of its stockholders in derivative suits to recover monetary
damages against a director for breach of certain fiduciary duties as a director,
except that a director will be personally liable for:
• any
breach of his or her duty of loyalty to the registrant or its stockholders;
• acts
or
omissions not in good faith which involve intentional misconduct or a knowing
violation of law;
• the
payment of dividends or the redemption or purchase of stock in violation of
Delaware law; or
• any
transaction from which the director derived an improper personal benefit.
This
provision does not affect a director’s liability under the federal securities
laws.
To
the
extent that the registrant’s directors, officers and controlling persons are
indemnified under the provisions contained in the Certificate of Incorporation,
Delaware law or contractual arrangements against liabilities arising under
the
Securities Act, 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, as amended, and is therefore
unenforceable.
Provisions
that May Have an Anti-Takeover Effect
Certain
provisions set forth in the Certificate of Incorporation, bylaws and in Delaware
law, which are summarized below, are intended to enhance the likelihood of
continuity and stability in the composition of the registrant’s Board of
Directors and in the policies formulated by the registrant’s Board of Directors
and to discourage certain types of transactions that may involve an actual
or
threatened change of control. In that regard, these provisions are designed
to
reduce the registrant’s vulnerability to an unsolicited acquisition proposal.
The provisions also are intended to discourage certain tactics that may be
used
in proxy fights. However, such provisions could have the effect of discouraging
others from making tender offers for the registrant’s shares and, as a
consequence, they also may inhibit fluctuations in the market price of the
registrant’s common stock that could result from actual or rumored takeover
attempts. Such provisions also may have the effect of preventing changes in
the
registrant’s management.
Blank
Check Preferred Stock.
The
Certificate of Incorporation contains provisions that permit the registrant’s
Board of Directors to issue, without any further vote or action by the
stockholders, up to 30,000,000 shares of preferred stock in one or more series
and, with respect to each such series, to fix the number of shares constituting
the series and the designation of the series, the voting powers (if any) of
the
shares of the series, and the preferences and relative, participating, optional
and other special rights, if any, and any qualifications, limitations or
restrictions, of the shares of such series. As a result, the registrant’s Board
of Directors could authorize the issuance of shares of preferred stock with
terms and conditions that could have the effect of delaying, deferring or
preventing a transaction or a change in control that might involve a premium
price for holders of the registrant’s common stock or otherwise be in their best
interest.
Special
Meetings of Stockholders.
The
registrant’s bylaws provide that special meetings of stockholders may be called
only by the Board of Directors. Stockholders are not permitted to call a special
meeting of stockholders or to require that the Board of Directors call such
a
special meeting.
Delaware
Takeover Statute.
In
general, Section 203 of the Delaware General Corporation Law prohibits a
Delaware corporation that is a public company from engaging in any “business
combination” (as defined below) with any “interested stockholder” (defined
generally as an entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or person affiliated
with such entity or person) for a period of three years following the date
that
such stockholder became an interested stockholder, unless: (1) prior to such
date, the board of directors of the corporation approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder; (2) on consummation of the transaction that resulted
in
the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced, excluding for purposes of determining the number
of shares outstanding those shares owned (x) by persons who are directors and
also officers and (y) by employee stock plans in which employee participants
do
not have the right to determine confidentially whether shares held subject
to
the plan will be tendered in a tender or exchange offer; or (3) on or subsequent
to such date, the business combination is approved by the board of directors
and
authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 662/3%
of the
outstanding voting stock that is not owned by the interested stockholder.
Section
203 of the Delaware General Corporation Law defines “business combination” to
include: (1) any merger or consolidation involving the corporation and the
interested stockholder; (2) any sale, transfer, pledge or other disposition
of
10% or more of the assets of the corporation involving the interested
stockholder; (3) subject to certain exceptions, any transaction that results
in
the issuance or transfer by the corporation of any stock of the corporation
to
the interested stockholder; (4) any transaction involving the corporation that
has the effect of increasing the proportionate share of the stock of any class
or series of the corporation beneficially owned by the interested stockholder;
or (5) the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
Item
2. Exhibits.
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Exhibit
No.
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Description
Of Document
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3.1
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Amended
and Restated Certificate of Incorporation, as filed with the Delaware
Secretary of State on April 26, 2006. (1)
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3.2
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Bylaws
of ZIOPHARM Oncology, Inc. (2)
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4.1
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Form
of Specimen Stock Certificate.
(3)
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(1)
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Incorporated
by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K
filed April 26, 2006.
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Incorporated
by reference to Exhibit 3.3 to the registrant’s Current Report on Form 8-K
filed September 19, 2005.
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Incorporated
by reference to Exhibit 4.1 to the registrant’s Registration Statement on
Form SB-2 (SEC File No. 333-129020) filed October 14,
2005.
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SIGNATURE
Pursuant
to the requirements of Section 12 of the Exchange Act of 1934, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
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ZIOPHARM
ONCOLOGY, INC. |
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| Dated:
September 20, 2006 |
By: |
/s/ Richard
E. Bagley |
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Richard
E. Bagley, President,
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Chief
Operating Officer and Chief Financial
Officer |