Current Report — Form 8-K Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: 8-K Current Report HTML 36K
2: EX-1.1 Underwriting Agreement HTML 316K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 81K
4: EX-5.1 Opinion re: Legality HTML 20K
5: EX-99.1 Miscellaneous Exhibit HTML 17K
6: EX-99.2 Miscellaneous Exhibit HTML 18K
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Item
1.01 Entry into a Material
Definitive Agreement.
On
December 4, 2009, ZIOPHARM Oncology, Inc. (the “Company”), entered into an
underwriting agreement (the “Underwriting Agreement”) in which JMP Securities
LLC and Rodman & Renshaw, LLC agreed to serve as co-lead managers (together,
the “Underwriters”) in connection with a public offering and sale by the Company
of 15,484,000 units (each a “Unit,” and collectively, the “Units”) at a price to
the public of $3.10 per unit. Each Unit sold in the Offering will consist of one
share of the Company’s common stock (the “Common Stock”) and a warrant to
purchase .50 of a share of Common Stock at a price of $4.02 per share (the
“Investor Warrants”). The shares of common stock and warrants will be
immediately separable and will be issued separately. The Investor
Warrants will be exercisable at any time after the date of issuance and will
expire on the fifth anniversary of issuance.
In
addition, under the terms of the Underwriting Agreement, we have agreed to issue
additional warrants to purchase up to 464,520 shares of Common Stock to the
Underwriters as underwriting compensation (the “Underwriters’
Warrants”). The Underwriters’ Warrants will be exercisable, through
either a cash or cashless feature, commencing six months after the date of
issuance and will expire on the fifth anniversary of issuance. The Underwriters’
Warrants and underlying shares of common stock will not be exercised, sold,
transferred, assigned, or hypothecated or be the subject of any hedging, short
sale, derivative, put or call transaction that would result in the effective
economic disposition of the Underwriters’ Warrants by any person for a period of
180 days from issuance of the Underwriters’ Warrants on the closing date of the
offering in accordance with Financial Industry Regulatory Authority (“FINRA’)
Rule 5110.
The
closing of the offering is expected to take place on or about December 9, 2009,
subject to the satisfaction of customary closing conditions. Gross
proceeds from the sale of Units to be sold pursuant to the Underwriting
Agreement will be $48.0 million, before deducting the Underwriters’ fees and
estimated offering expenses. The net offering proceeds to the Company, after
deducting the Underwriter’s fees and other estimated offering expenses payable
by the Company, are expected to be approximately $45.2 million.
The
offering of Units and Underwriters’ Warrants is being made pursuant to a
prospectus supplement filed with the Securities and Exchange Commission, in
connection with a shelf takedown from the Company’s registration statements on
Form S-3 (File No. 333-161453 and 333-163517). A copy of the opinion
of Maslon Edelman Borman & Brand, LLP relating to the legality of the
issuance and sale of the securities being offered is attached as Exhibit 5.1
hereto.
The
foregoing descriptions of the Underwriting Agreement, the form of Investor
Warrant and the form of Underwriter Warrant do not purport to be complete and
are qualified in their entirety by reference to the exhibits hereto, which are
incorporated herein by reference. The benefits of the representations and
warranties set forth in such documents are not intended only and do not
constitute continuing representations and warranties of the Company to any
future or other investors.
Underwriting
Agreement dated December 4, 2009 between ZIOPHARM Oncology, Inc. and JMP
Securities LLC, as representative of the several underwriters named
thererin
4.1
Form
of investor common stock purchase warrant (included as Exhibit E to the
Underwriting Agreement filed as Exhibit 1.1 to this Form
8-K)
4.2
Form
of common stock purchase warrant issued to underwriters
5.1
Opinion
of Maslon Edelman Borman & Brand, LLP
23.1
Consent
of Maslon Edelman Borman & Brand, LLP (included as part of
Exhibit 5.1)
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.
Title:
President, Chief Operating Officer and Chief Financial
Officer
INDEX OF
EXHIBITS
Exhibit No.
Description
1.1
Underwriting
Agreement dated December 4, 2009 between ZIOPHARM Oncology, Inc. and JMP
Securities LLC, as representative of the several underwriters named
thererin
4.2
Form
of common stock purchase warrant issued to underwriters
