As
filed with the Securities and Exchange Commission on April 16, 2021
Registration
Statement No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ONCOTELIC
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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13-3679168
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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29397
Agoura Road, Suite 107
Agoura
Hills, CA 91301
(650)
635-7000
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
AMENDED
AND RESTATED ONCOTELIC THERAPEUTICS, INC. 2015 EQUITY INCENTIVE PLAN
(Full
Title of the Plan)
Vuong
Trieu
Chief
Executive Officer
Oncotelic
Therapeutics, Inc.
29397
Agoura Road, Suite 107
Agoura
Hills, CA 91301
(650)
635-7000
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
a “smaller reporting company” and an “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[X]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[ ]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION
OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering
Price per Share(2)
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Proposed Maximum Aggregate
Offering Price(2)
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Amount of Registration Fee
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Common Stock, $0.001 par value per share
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20,000,000
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$
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0.27
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$
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5,389,000
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$
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587.94
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(1)
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In
accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall also be deemed to
cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(h) under the Securities Act
of 1933, as amended, based on the average of the bid and asked price of the Registrant’s of common stock of the Registrant
on April 13, 2021.
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EXPLANATORY
NOTE
This
Registration Statement on Form S-8 (this “Registration Statement”) is filed by Oncotelic Therapeutics, Inc.,
formerly Mateon Therapeutics, Inc. (the “Registrant”), to register an additional total of 20,000,000 shares
of its common stock, $0.01 par value per share (“Common Stock”), which may be issued pursuant to the Registrant’s
Amended and Restated 2015 Equity Incentive Plan (the “Plan”). Such additional shares were approved by the shareholders
of the Company on August 10, 2020 and as reported to the Securities and Exchange Commission (the “SEC”) vide
a Current Report on Form 8-K on August 14, 2020,
The
Registrant previously registered an aggregate of 7,250,000 shares available for issuance under the Plan on registration statements
on Form S-8 filed with the SEC on May 28, 2015 (Registration No. 333-204500) and August 14, 2018 (Registration No. 333-226832)
(the “Prior Registration Statements”). Pursuant to General Instruction E to Form S-8, the contents of the Prior
Registration Statements relating to the Plan, and all periodic reports filed by the Registrant after the Prior Registration Statement
to maintain current information about the Registrant, are hereby incorporated by reference herein.
In
accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”),
the information specified by Part I of Form S-8 has been omitted from this Registration Statement for offers of Common Stock pursuant
to the Plan. The documents containing the information specified in Part I will be delivered to the participants in the Plan covered
by this Registration Statement as required by Rule 428(b)(1) under the Securities Act.
PART
II
Information
Required in the Registration Statement
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
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the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31,
2020, filed with the SEC on April 15, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on January 15, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on February 1, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on February 2, 2021;
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the
Registrant’s second Current Report on Form 8-K filed with the SEC on February 2,
2021;
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the
Registrant’s third Current Report on Form 8-K filed with the SEC on February 2,
2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on February 18, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on March 2, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on March 26, 2021;
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the
Registrant’s Current Report on Form 8-K, filed with the SEC on March 30, 2021;
and
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the
description of the Registrant’s common stock contained in its Registration Statement
on Form 8-A filed on June 24, 1993 (File No. 0-21990) pursuant to Section 12(g) of the
Exchange Act, which incorporates by reference the description of the shares of our common
stock contained in its Registration Statement on Form S-1 (File No. 33-64968) filed on
June 24, 1993 and declared effective by the SEC on August 25, 1993, and any amendment
or report filed with the SEC for purposes of updating such description.
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Until
such time that a post-effective amendment to this Registration Statement has been filed which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold at the time of such amendment, 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, as amended (the
“Exchange Act”), 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. Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed document which is also deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration Statement.
Item
8. Exhibits
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 Agoura Hills, California, on this 16th day of April,
2021.
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ONCOTELIC
THERAPEUTICS, INC.
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By:
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/s/
Vuong Trieu
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Name:
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Vuong
Trieu
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Title:
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President
and Chief Executive Officer
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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.
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Signature
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Title
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Date
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/S/
Vuong Trieu
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President,
Chief Executive Officer and Chairman of the
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April
16, 2021
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Vuong
Trieu, Ph. D.
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Board
and Director (Principal executive officer)
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/S/
Amit Shah
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Chief
Financial Officer (Principal financial
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April
16, 2021
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Amit
Shah
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and
accounting officer)
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/S/
David Diamond
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Director
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April
16, 2021
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David
Diamond
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/S/
Steven King
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Director
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April
16, 2021
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Steven
King
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/S/
Anthony Maida
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Director
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April
16, 2021
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Anthony
Maida, M.D., Ph. D.
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Exhibit
5.1
April
15, 2021
Oncotelic
Therapeutics, Inc.
29397
Agoura Road, Suite 107
Agoura
Hills, CA 91301
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Re:
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Registration
Statement on Form S-8 for Oncotelic Therapeutics, Inc.
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Dear
Ladies and Gentlemen:
We
have acted as counsel to Oncotelic Therapeutics, Inc., a Delaware corporation (the “Company”), in connection
with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities
Act of 1933, as amended (the “Act”). The Registration Statement relates to the registration of a total of 20,000,000
shares (the “Plan Shares”) of the Company’s common stock, par value $0.01 per share, issuable under the
Amended and Restated Oncotelic Therapeutics, Inc. 2015 Equity Incentive Plan (the “Plan”).
In
connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise
identified to our satisfaction as being true copies, of the Restated Certificate of Incorporation of the Company, as amended,
and the Amended and Restated Bylaws of the Company, and such other documents, records and other instruments as we have deemed
appropriate for purposes of the opinion set forth herein.
We
have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted
to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic
copies and the authenticity of the originals of all documents submitted to us as copies.
Based
upon the foregoing, we are of the opinion that the Plan Shares have been duly authorized and, when and to the extent issued in
accordance with the terms of the Plan and, with respect to the Plan Shares, when and to the extent issued in accordance with the
terms of any award agreement entered into under the Plan, the Plan Shares will be validly issued, fully paid and nonassessable.
In
rendering the opinion set forth above, we express no opinion as to the laws of any jurisdiction other than the Delaware General
Corporation Law and the federal laws of the United States of America.
We
hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby
admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations
of the U.S. Securities and Exchange Commission thereunder.
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Very
truly yours,
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/s/
Disclosure Law Group
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Disclosure
Law Group, a Professional Corporation
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Exhibit
10.1
AMENDMENT
TO THE
OXIGENE,
INC. 2015 EQUITY INCENTIVE PLAN
The
OXiGENE, Inc. 2015 Equity Incentive Plan (the “2015 Plan”) is hereby amended, effective as of the date of adoption
of this Amendment by the Board of Directors of Oncotelic Therapeutics, Inc. (the “Company”):
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1.
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The
name of the Plan is hereby amended in its entirety to: “ONCOTELIC THERAPEUTICS, INC. 2015 EQUITY INCENTIVE PLAN”.
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2.
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Section
1 of the 2015 Plan is amended in its entirety:
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“1.
DEFINITIONS.”
Unless
otherwise specified or unless the context otherwise requires, the following terms, as used in this Oncotelic Therapeutics, Inc.
2015 Equity Incentive Plan, have the following meanings:
Administrator
means the Board of Directors, unless it has delegated power to act on its behalf to the Committee, in which case the Administrator
means the Committee.
Affiliate
means a corporation which, for purposes of Section 424 of the Code, is a parent or subsidiary of the Company, direct or
indirect.
Agreement
means an agreement between the Company and a Participant pertaining to a Stock Right delivered pursuant to the Plan in such form as
the Administrator shall approve.
Board
of Directors means the Board of Directors of the Company.
Cause
means, with respect to a Participant: (a) dishonesty with respect to the Company or any Affiliate, (b) insubordination, substantial
malfeasance or non feasance of duty, (c) unauthorized disclosure of confidential information, (d) breach by a Participant of any
provision of any employment, consulting, advisory, nondisclosure, non-competition or similar agreement between the Participant and
the Company or any Affiliate, and (e) conduct substantially prejudicial to the business of the Company or any Affiliate; provided,
however, that any provision in an agreement between a Participant and the Company or an Affiliate, which contains a conflicting
definition of Cause for termination and which is in effect at the time of such termination, shall supersede this definition with
respect to that Participant. The determination of the Administrator as to the existence of Cause will be conclusive on the
Participant and the Company.
Code
means the United States Internal Revenue Code of 1986, as amended, including any successor statute, regulation and guidance issued
with respect thereto.
Committee
means the committee of the Board of Directors to which the Board of Directors has delegated power to act under or pursuant to the
provisions of the Plan, the composition of which shall at all times satisfy the provisions of Section 162(m) of the Code.
Common
Stock means shares of the Company’s common stock, $0.01 par value per share.
Company
means Oncotelic Therapeutics, Inc., a Delaware corporation.
Consultant
means any natural person who is an advisor or consultant that provides bona fide services to the Company or its Affiliates, provided
that such services are not in connection with the offer or sale of securities in a capital raising transaction, and do not directly
or indirectly promote or maintain a market for the Company’s or its Affiliates’ securities.
Disability
or Disabled means permanent and total disability as defined in Section 22(e)(3) of the Code.
Employee
means any employee of the Company or of an Affiliate (including, without limitation, an employee who is also serving as an officer
or director of the Company or of an Affiliate), designated by the Administrator to be eligible to be granted one or more Stock
Rights under the Plan.
Exchange
Act means the Securities Exchange Act of 1934, as amended.
Fair
Market Value of a Share of Common Stock means:
(1)
If the Common Stock is listed on a national securities exchange or traded in the over-the-counter market and sales prices are
regularly reported for the Common Stock, the closing or, if not applicable, the last price of the Common Stock on the composite
tape or other comparable reporting system for the trading day on the applicable date and if such applicable date is not a trading
day, the last market trading day prior to such date;
(2)
If the Common Stock is not traded on a national securities exchange but is traded on the over-the-counter market, if sales prices
are not regularly reported for the Common Stock for the trading day referred to in clause (1), and if bid and asked prices for
the Common Stock are regularly reported, the mean between the bid and the asked price for the Common Stock at the close of trading
in the over-the-counter market for the trading day on which Common Stock was traded on the applicable date and if such applicable
date is not a trading day, the last market trading day prior to such date; and
(3)
If the Common Stock is neither listed on a national securities exchange nor traded in the over-the-counter market, such value
as the Administrator, in good faith, shall determine in compliance with applicable laws.
ISO
means an option intended to qualify as an incentive stock option under Section 422 of the Code.
Non-Qualified
Option means an option which is not intended to qualify as an ISO.
Option
means an ISO or Non-Qualified Option granted under the Plan.
Participant
means an Employee, director or Consultant of the Company or an Affiliate to whom one or more Stock Rights are granted under the
Plan. As used herein, “Participant” shall include “Participant’s Survivors” where the context
requires.
Performance
Based Award means a Stock Grant or Stock-Based Award which vests based on the attainment of written Performance Goals as set
forth in Paragraph 9 hereof.
Performance
Goals means performance goals based on one or more of the following criteria: (i) income or earnings including operating income,
earnings before or after taxes, interest, depreciation, amortization, and/or extraordinary or special items; (ii) net income
excluding amortization of intangible assets, depreciation and impairment of goodwill and intangible assets and/or excluding charges
attributable to the adoption of new accounting pronouncements; (iii) earnings or book value per share (basic or diluted); (iv)
return on assets (gross or net), return on investment, return on capital, return on invested capital or return on equity; (v) stock
price or total shareholder return; (vi) cost targets, reductions and savings, expense management, productivity and efficiencies;
(vii) operational objectives, consisting of one or more objectives based on achieving progress in research and development programs
or achieving regulatory milestones related to development and or approval of products; and (viii) other strategic business criteria,
consisting of one or more objectives based on meeting specified goals. Where applicable, the Performance Goals may be expressed in
terms of a relative measure against a set of identified peer group companies, attaining a specified level of the particular
criterion or the attainment of a percentage increase or decrease in the particular criterion, and may be applied to one or more of
the Company or an Affiliate of the Company, all as determined by the Committee. The Performance Goals may include a threshold level
of performance below which no Performance-Based Award will be issued or no vesting will occur, levels of performance at which
Performance-Based Awards will be issued or specified vesting will occur, and a maximum level of performance above which no
additional issuances will be made or at which full vesting will occur. Each of the foregoing Performance Goals shall be evaluated in
an objectively determinable manner in accordance with Section 162(m) of the Code and in accordance with generally accepted
accounting principles where applicable, unless otherwise specified by the Committee, and shall be subject to certification by the
Committee. The Committee shall have the authority to make equitable adjustments to the Performance Goals in recognition of unusual
or non-recurring events affecting the Company or any Affiliate or the financial statements of the Company or any Affiliate, in
response to changes in applicable laws or regulations, or to account for items of gain, loss or expense determined to be
extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a business or related to a
change in accounting principles, provided that any such change shall at all times satisfy the provisions of Section 162(m) of the
Code.
Plan
means this Oncotelic Therapeutics, Inc. 2015 Equity Incentive Plan.
Restricted
Stock Units means a unit that is a time-based restricted common stock of the Company.
Securities
Act means the Securities Act of 1933, as amended.
Shares
means shares of the Common Stock as to which Stock Rights have been or may be granted under the Plan or any shares of capital stock
into which the Shares are changed or for which they are exchanged within the provisions of Paragraph 3 of the Plan. The Shares
issued under the Plan may be authorized and unissued shares or shares held by the Company in its treasury, or both.
Stock-Based
Award means a grant by the Company under the Plan of an equity award or an equity based award which is not an Option or a
Stock Grant, which the Committee may, in its sole discretion, structure to qualify in whole or in part as “performance-based
compensation” under Section 162(m) of the Code.
Stock
Grant means a grant by the Company of Shares under the Plan, which the Committee may, in its sole discretion, structure to
qualify in whole or in part as “performance-based compensation” under Section 162(m) of the Code.
Stock
Right means a right to Shares or the value of Shares of the Company granted pursuant to the Plan, which may be an ISO, a Non-Qualified
Option, a Stock Grant or a Stock-Based Award.
Survivor
means a deceased Participant’s legal representatives and/or any person or persons who acquired the Participant’s
rights to a Stock Right by will or by the laws of descent and distribution.”
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3.
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Section
3(a)(i) of the 2015 Plan is amended in its entirety to read as follows:
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“(i)
27,250,000 shares of Common Stock, plus”
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4.
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Section
4(c) of the 2015 Plan is amended in its entirety to read as follows:
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“(c)
Determine the number of Shares for which a Stock Right or Stock Rights shall be granted, provided, however, that in no event
shall Stock Rights with respect to more than 1,000,000 Shares be granted to any Participant in any fiscal year;”
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*
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Except
as amended hereby, the terms and conditions of the 2015 Plan shall otherwise continue in full force and effect.
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Oncotelic
Therapeutics, Inc.
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By:
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/s/
Amit Shah
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Name:
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Amit
Shah
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Title:
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Chief
Financial Officer
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