| Item 1.01 | Entry into a Material Definitive Agreement. |
On February 4, 2021, ZIOPHARM Oncology, Inc. (the “Company”) entered into an agreement (the “Settlement Agreement”) with WaterMill Asset Management Corp. and Robert W. Postma (the foregoing, collectively, “WaterMill”).
Pursuant to the Settlement Agreement, the Company increased the size of the Company’s Board of Directors (the “Board”) from eight to nine directors and appointed Mr. Postma to fill the newly created directorship. Mr. Postma will serve an initial term expiring at the Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”). Additionally, the Company agreed that during the Standstill Period (as defined below), the Company will nominate each of Mr. Postma, Jaime Vieser and Holger Weis for election at any stockholder meeting at which directors are to be elected and will recommend, support and solicit proxies for the election of each of Messrs. Postma, Vieser and Weis.
The Settlement Agreement also provides that at any meeting of the Company’s stockholders held prior to the expiration of the Standstill Period (as defined below), WaterMill will vote all of its shares of Company securities in accordance with the Board’s recommendation, with respect to the election, removal and/or replacement of directors. WaterMill retains the right to vote in its sole discretion with respect to any other publicly announced proposal not made in breach of the Settlement Agreement.
The Settlement Agreement includes certain customary standstill restrictions applicable from February 4, 2021 until the date that is the earlier of (i) January 1, 2022 and (ii) thirty (30) calendar days prior to the nomination deadline for the Company’s 2022 annual meeting of stockholders (the “Standstill Period”). During the Standstill Period, WaterMill is, among other things, restricted from engaging in any solicitation of proxies or written consents with respect to the election or removal of directors or, with certain exceptions, any other matter or proposal, or acquiring voting stock that would result in WaterMill having beneficial ownership of more than 9.9% of the Company’s outstanding voting stock.
Pursuant to the Settlement Agreement, the Company agreed to reimburse WaterMill for up to $400,000 of its reasonable out-of-pocket fees and expenses out of a total of approximately $650,000 in fees and expenses actually incurred by WaterMill in connection with (i) WaterMill’s solicitation of written consents the Company’s stockholders to vote in favor of certain proposals, as set forth in the definitive consent statement filed by WaterMill on October 30, 2020, and (ii) the negotiation, execution and effectuation of the Settlement Agreement.
The Settlement Agreement is filed with this Form 8-K as Exhibit 10.1 and is incorporated by reference herein. The foregoing description of the Settlement Agreement is qualified in its entirety by reference to the full text thereof.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
The information set forth in Item 1.01 is incorporated by reference into this Item 5.02.
