Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: 8-K Current Report HTML 35K
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 75K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 69K
4: EX-10.1 Material Contract HTML 213K
5: EX-10.2 Material Contract HTML 132K
6: EX-99.1 Miscellaneous Exhibit HTML 19K
(Registrant’s
telephone number, including area code)
Not
applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following
provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425).
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12).
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b)).
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c)).
Item
1.01 Entry into a Material
Definitive Agreement
On
September 9, 2009, ZIOPHARM Oncology, Inc. (ZIOPHARM or the “Company”) entered
into a securities purchase agreement and related documentation with certain
investors pursuant to which it has agreed to sell a total of 2,772,337 units
(the “Units”), each Unit consisting of (i) one share of common stock
(collectively, the “Shares”) and (ii) a warrant (collectively, the
“Warrants”) to purchase one share of common stock at an exercise price of $2.04
per share, for a purchase price of $1.825 per Unit (the “Offering”). The
Warrants will have a five year term and will be exercisable immediately
following the closing of the transaction. Based on the securities purchase
agreement and related documentation, total gross proceeds from the Offering will
be approximately $5.06 million, before deducting selling commissions and
expenses. Upon satisfaction of customary closing conditions, the
closing of the transaction occurred on September 15,2009.
In
connection with the Offering, the Company entered into a placement agency
agreement with Rodman & Renshaw, LLC, a subsidiary of Rodman & Renshaw
Capital Group, Inc. (“Rodman”), whereby Rodman agreed to act as a placement
agent in connection with the placement of the Shares and
Warrants. Riverbank Capital Securities, Inc. and Griffin Securities,
Inc. served as sub-placement agents in connection with the
Offering. In consideration for their services, the Company paid
aggregate cash commissions equal to seven percent of the gross cash proceeds
from the Offering, or approximately $0.35 million. The Company also issued
five-year warrants to the Placement Agents to purchase an aggregate of five
percent of the Shares sold in the Offering at an exercise price of $2.04 per
share (the “Placement Warrants”). The Company has also agreed to
reimburse Rodman for up to $50,000 of the out-of-pocket expenses it incurs in
connection with its engagement.
Timothy
McInerney, who serves on the Board of Directors of the Company, is an officer of
Riverbank Capital Securities, Inc. Riverbank Capital Securities, Inc.
may allocate to Mr. McInerney a portion of the compensation that it will receive
for serving as a sub-placement agent. In light of the relationship
between Mr. McInerney and the Placement Agent, Mr. McInerney abstained from
voting as a director on matters related to the selection of the Placement Agents
and the terms of the offering were reviewed and approved by a special financing
committee of which Mr. McInerney was not a member.
Also in
connection with the Offering and pursuant to a registration rights agreement,
the Company has agreed to file a “resale” registration statement (the “Initial
Registration Statement”) covering all of the Shares and the shares issuable upon
exercise of the Warrants and the Placement Warrants (the “Warrant Shares”), up
to the maximum number of shares able to be registered pursuant to applicable
Securities and Exchange Commission (“SEC”) regulations, within 30 days of the
closing of the Offering. If any Shares or Warrant Shares are unable to be
included on the Initial Registration Statement, the Company has agreed to file
subsequent registration statements until all the Shares and Warrant Shares have
been registered. The Company is obligated to maintain the effectiveness of
the “resale” registration statement until all securities therein are sold or are
otherwise can be sold pursuant to Rule 144, without any
restrictions.
The
foregoing description of each of the securities purchase agreement, the
registration rights agreement and the form of Warrant and Placement Warrant is
qualified in its entirety by reference thereto, which are filed as
Exhibits 10.1, 10.2, 4.1 and 4.2 to this Current Report, respectively, and
are incorporated herein by reference. The press release announcing the
Offering is attached hereto as Exhibit 99.1 and is incorporated herein by
reference.
Item
3.02
Unregistered Sales of Equity Securities
The
disclosure in Item 1.01 is incorporated herein by reference thereto.
Neither the Shares, Warrants or Placement Agent Warrants to be sold and issued
in the Offering (including the shares of common stock issuable upon exercise of
the Warrants or Placement Agent Warrants), will be registered under the
Securities Act of 1933, as amended (the “Securities Act”) at the time of sale,
and therefore may not be offered or sold in the United States absent
registration or an applicable exemption from registration requirements. For
these issuances, the Company is relying on the exemption from federal
registration under Section 4(2) of the Securities Act and/or Rule 506
promulgated thereunder, based on the Company’s belief that the offer and sale of
the Shares, Warrants and Placement Agent Warrants has not and will not involve a
public offering as each investor was “accredited” and no general solicitation
has been involved in the Offering.
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.