Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-3 Registration Statement for Securities Offered HTML 111K
Pursuant to a Transaction
2: EX-5.1 Opinion re: Legality HTML 15K
3: EX-23.1 Consent of Experts or Counsel HTML 7K
We have
acted as counsel to ZIOPHARM Oncology, Inc. (the “Company”), a Delaware
corporation (the “Company”), in connection with the preparation and filing with
the Securities and Exchange Commission (the “Commission”) of a Registration
Statement on Form S-3 (the “Registration Statement”), pursuant to which the
Company is registering under the Securities Act of 1933, as amended (the
“Securities Act”), up to $75,000,000 aggregate amount of its common stock,
$0.001 par value per share (the “Common Stock”), which may be sold by the
Company from time to time.
In
connection with this opinion, we have examined the Company’s Certificate of
Incorporation, as amended, the Company’s Amended and Restated Bylaws, such other
records of the corporate proceedings of the Company and certificates of the
Company’s officers as we have deemed relevant, and the Registration Statement
and the exhibits thereto.
In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such copies.
Based
upon the foregoing, we are of the opinion that, with respect to the Common
Stock, when (i) specifically authorized for issuance by the Company’s Board
of Directors or an authorized committee thereof (the “Authorizing Resolutions”),
(ii) the Registration Statement, as finally amended (including all
post-effective amendments), has become effective under the Securities Act,
(iii) an appropriate Prospectus Supplement with respect to the applicable
shares of Common Stock has been prepared, delivered and filed in compliance with
the Securities Act and the applicable rules and regulations thereunder,
(iv) if the applicable shares of Common Stock are to be sold pursuant to an
Underwriting Agreement or a Placement Agreement, such Underwriting Agreement or
Placement Agreement with respect to the applicable shares of Common Stock has
been duly authorized, executed and delivered by the Company and the other
parties thereto, (v) the Common Stock has been issued and sold as
contemplated by the Registration Statement, and (vi) the Company has
received the consideration provided for in the Authorizing Resolutions, the
Common Stock will be validly issued, fully paid and nonassessable.
The
opinion set forth above is subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors;
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought; (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of, or contribution to, a party
with respect to a liability where such indemnification or contribution is
contrary to public policy; and (iv) we express no opinion concerning the
enforceability of any waiver of rights or defenses with respect to stay,
extension or usury laws.
Our
opinion is limited to the General Corporation Law of the State of Delaware
(including the applicable provisions of the Delaware Constitution and the
reported judicial decisions interpreting such laws) and the federal laws of the
United States, and we express no opinion with respect to the laws of any other
jurisdiction.
Please
note that we are opining only as to the matters expressly set forth herein, and
no opinion should be inferred as to any other matters. This opinion is based
upon currently existing statutes, rules, regulations and judicial decisions, and
we disclaim any obligation to advise you of any change in any of these sources
of law or subsequent legal or factual developments which might affect any
matters or opinions set forth herein after the Registration Statement has been
declared effective by the Commission.
We hereby
consent to the filing of this opinion with the Commission as an exhibit to the
Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of
this Firm’s name therein and in the Prospectus under the caption “Legal
Matters.” In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
