As filed with the Securities and Exchange Commission on November 17, 2011
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
_________________________________
TALON THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
|
Delaware
|
2207 Bridgepointe Parkway, Suite 250
San Mateo, California 94404
Telephone (650) 588-6404
(Address of principal executive offices)
|
32-0064979
|
(State or other jurisdiction of
Incorporation or organization)
|
(I.R.S. Employer
Identification No.)
|
|
|
|
_________________________________
2006 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
_________________________________
|
Mr. Craig W. Carlson
Sr. Vice President & Chief Financial Officer
Talon Therapeutics, Inc.
2207 Bridgepointe Parkway, Suite 250
San Mateo, CA 94404
Telephone: (650) 588-6404
Facsimile: (650) 588-2787
(Name and address of agent for service)
|
Copies to:
Christopher J. Melsha, Esq.
Sean M. Nagle, Esq.
Fredrikson & Byron, P.A.
200 South 6th Street, Suite 4000
Minneapolis, Minnesota 55402
Telephone: (612) 492-7000
Facsimile: (612) 492-7077
|
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer
o
|
|
Accelerated filer
o
|
|
|
Non-accelerated filer
o
(Do not check if a smaller reporting company)
|
Smaller reporting company
x
|
|
_________________________________
CALCULATION OF REGISTRATION FEE
|
Title of
Securities to be Registered
|
Proposed Maximum Amount to be
Registered (1)
|
Proposed
Maximum
Offering Price
Per Share (2)
|
Aggregate
Offering Price (2)
|
Amount of
Registration Fee
|
|
Common Stock, par value $.001 per share
|
150,000
|
$0.52
|
$78,000
|
$8.94
|
|
(1)
|
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.
|
|
(2)
|
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, 2011, as reported on the OTC Bulletin Board.
|
EXPLANATORY NOTE
The purpose of this Registration Statement is to register 150,000 additional shares of Common Stock for issuance under the Registrant’s 2006 Employee Stock Purchase Plan, as amended (the “Plan”), thus increasing the total number of shares registered for issuance under the Plan from 187,500 (after giving effect to the Registrant’s one-for-four reverse stock split effected in September 2010) to 337,500. With the exception of Part II, Items 6, 8, and 9, the contents of the Registrant’s Registration Statement on Form S-8, Reg. No. 333-135252, are incorporated herein by reference.
PART II
Item 6. Indemnification of Directors and Officers.
Article 6 of the Registrant’s Amended & Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), provides that no director shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law (“DGCL”) or (iv) for any transaction from which the director derived an improper personal benefit. In the event the DGCL is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Registrant, in addition to the limitation on personal liability provided in Section 6 of the Certificate of Incorporation, shall be limited to the fullest extent permitted by the amended DGCL. No amendment to or repeal of Section 7 shall apply to or have any effect on the liability or alleged liability of any director of the Registrant for or with respect to any acts or omissions of such director occurring prior to such amendment.
Article 7 of the Certificate of Incorporation further provides that the Registrant will indemnify, to the fullest extent permitted by Section 145 of the DGCL, each person the Registrant can indemnify thereunder.
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 above discussion of the Registrant’s Certificate of Incorporation and Section 145 of the DGCL is not intended to be exhaustive and is respectively qualified in its entirety by such Certificate of Incorporation and statute.
Item 8. Exhibits.
|
Exhibit
|
|
Description
|
|
4.1
|
|
Registrant’s 2006 Employee Stock Purchase Plan, as amended through July 15, 2011 (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 10-Q for the quarter ended September 30, 2011).
|
|
4.2
|
|
Amended and Restated Certificate of Incorporation of the Registrant, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 10-Q for the quarter ended September 30, 2010).
|
|
4.3
|
|
Certificate of Designation of Series A-1 Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed June 11, 2010).
|
|
4.4
|
|
Certificate of Designation of Series A-2 Convertible Preferred Stock (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed June 11, 2010).
|
|
4.5
|
|
Amended and Restated Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 10-Q for the quarter ended June 30, 2010).
|
|
5.1
|
|
Opinion of Fredrikson & Byron, P.A.
|
|
23.1
|
|
Consent of BDO USA, LLP, Independent Registered Public Accounting Firm
|
|
23.2
|
|
Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1)
|
|
24.1
|
|
Power of Attorney (included on signature page hereof)
|
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) 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. 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) 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.
|
2.
|
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 herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
3.
|
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 in connection 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.
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 San Mateo, State of California, on November 17, 2011.
|
|
Talon Therapeutics, Inc.
|
|
|
|
|
|
|
|
|
By:
|
/s/ Steven R. Deitcher
|
|
|
|
|
Steven R. Deitcher, M.D.
|
|
|
|
|
President and Chief Executive Officer
|
|
|
|
|
|
|
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below hereby constitutes and appoints Steven R. Deitcher and Craig W. Carlson, and each of them, as his true and lawful attorney-in-fact and agent, with full power of substitution, to sign on his 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:
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Steven R. Deitcher
|
|
President, Chief Executive Officer and Director
|
|
November 17, 2011
|
|
Steven R. Deitcher, M.D.
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Craig W. Carlson
|
|
Senior Vice President and Chief Financial Officer
|
|
November 17, 2011
|
|
Craig W. Carlson
|
|
(Principal Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Samir M. Gharib
|
|
Interim Controller
|
|
November 17, 2011
|
|
Samir M. Gharib
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Nishan de Silva
|
|
Director
|
|
November 17, 2011
|
|
Nishan de Silva, M.D.
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Andrew K. Ferrer
|
|
Director
|
|
November 17, 2011
|
|
Andrew K. Ferrer
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Howard P. Furst
|
|
Director
|
|
November 17, 2011
|
|
Howard P. Furst, M.D.
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jonathan S. Leff
|
|
Director
|
|
November 17, 2011
|
|
Jonathan S. Leff
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Paul V. Maier
|
|
Director
|
|
November 17, 2011
|
|
Paul V. Maier
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Leon E. Rosenberg
|
|
Chairman of the Board
|
|
November 17, 2011
|
|
Leon E. Rosenberg, M.D.
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Robert J. Spiegel
|
|
Director
|
|
November 17, 2011
|
|
Robert J. Spiegel, M.D.
|
|
|
|
|
INDEX TO EXHIBITS FILED HEREWITH
|
Exhibit
|
|
Description
|
|
5.1
|
|
Opinion of Fredrikson & Byron, P.A.
|
|
23.1
|
|
Consent of BDO USA, LLP, Independent Registered Public Accounting Firm
|
II-5