UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): February 1, 2011
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-33038
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84-1475672
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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1180
Avenue of the Americas
19th
Floor
New
York, NY
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10036
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(646) 214-0700
(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:
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o
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Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425).
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12).
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b)).
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c)).
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Item
1.01 Entry into a Material
Definitive Agreement.
One
February 1, 2011, ZIOPHARM Oncology, Inc. (the “Company”) and Intrexon
Corporation entered into an amendment (the “Amendment”) to the Stock Purchase
Agreement (the “Stock Purchase Agreement”) dated January 6, 2011. Under the
Stock Purchase Agreement, if requested by the Company and subject to certain
restrictions and limitations, Intrexon has agreed to purchase securities in
conjunction with future securities offerings of the Company that constitute
“Qualified Financings,” subject to an aggregate equity purchase commitment of
$50,000,000. Reference is made to the description of the Stock Purchase
Agreement included in the Company’s Current Report on Form 8-K filed with
Securities and Exchange Commission on January 12, 2011. Under the Amendment, the
parties agreed that in the event that Intrexon voluntarily elects to purchase
securities in a Qualified Financing for which the Company does not request that
Intrexon participate, the aggregate purchase price paid by Intrexon for such
securities shall be applied against and reduce the then remaining maximum amount
of Intrexon’s $50,000,000 aggregate equity purchase commitment. The foregoing
descriptions of the Stock Purchase Agreement and the Amendment are qualified in
their entirety by reference to such agreements, which are incorporated herein by
reference. A copy of the Stock Purchase Agreement was filed as Exhibit
10.2 to the Company’s Current Report on Form 8-K filed with Securities and
Exchange Commission on January 12, 2011. A copy of the Amendment is
filed as Exhibit 10.1 to this Current Report.
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Financial
Statements and Exhibits.
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(d)
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Exhibits
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Exhibit No.
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Description
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10.1
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Amendment
to Stock Purchase Agreement dated February 1, 2011 between ZIOPHARM
Oncology, Inc. and Intrexon
Corporation
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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.
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ZIOPHARM
Oncology, Inc.
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By:
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/s/
Richard Bagley
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Date:
February 7, 2011
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Name:
Richard Bagley
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Title:
President, Chief Operating Officer and Chief Financial
Officer
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INDEX OF
EXHIBITS
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Exhibit No.
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Description
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10.1
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Amendment
to Stock Purchase Agreement dated February 1, 2011 between ZIOPHARM
Oncology, Inc. and Intrexon
Corporation
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Exhibit
10.1
AMENDMENT
TO
STOCK
PURCHASE AGREEMENT
This
Amendment, dated as of February 1, 2011 (this “Amendment”), to the
Stock Purchase Agreement, dated as of January 6, 2011 (the “Purchase Agreement”),
by and between ZIOPHARM Oncology, Inc., a Delaware corporation (the “Company”), and
Intrexon Corporation, a Virginia corporation (“Intrexon”). Capitalized
terms used in this Amendment and not otherwise defined shall have the respective
meanings ascribed to such terms in the Purchase Agreement.
WHEREAS,
Section 10.2 of the Purchase Agreement permits the amendment of the
Purchase Agreement by execution of an instrument in writing signed by each of
the parties to be bound; and
WHEREAS,
the Company and Intrexon desire to amend the Purchase Agreement as provided
herein.
NOW,
THEREFORE, in consideration of the mutual agreements specified in this
Amendment, the parties hereby agree as follows:
1. Amendment of
Section 7.1 of the Purchase Agreement. Section 7.1 of
the Purchase Agreement is hereby amended to add subsection (c) as
follows:
“7.1 Intrexon
Commitment. ….
(c) In
the event that Intrexon voluntarily elects to purchase securities in a Qualified
Financing for which the Company does not request that Intrexon participate, as
contemplated by this Section 7.1, the aggregate purchase price paid by Intrexon
for such securities shall nonetheless be applied against and reduce the then
remaining maximum amount of Intrexon’s $50,000,000 commitment
hereunder.”
2. Representations and
Warranties. Each of the Company and Intrexon represents and
warrants that (i) it has the corporate power and authority to execute and
deliver this Amendment, (ii) this Amendment has been duly and validly
authorized by all necessary action of its board of directors, and
(iii) this Amendment has been duly and validly executed and delivered and,
assuming due authorization and execution by the other parties hereto,
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms.
3. No Other
Modification. The Purchase Agreement shall not be modified by
this Amendment in any respect except as expressly set forth herein.
4. Governing
Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York as applied to contracts entered into and performed
entirely in the State of New York by New York residents, without regard to
conflicts of law principles.
5. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their duly authorized respective officers as of the date first written
above.
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COMPANY:
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INTREXON:
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ZIOPHARM
ONCOLOGY, INC.
By: /s/ Jonathan
Lewis
Name:
Jonathan Lewis, MD, PhD
Title:
Chief Executive Officer
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INTREXON
CORPORATION
By: /s/ Randal J.
Kirk
Name:
Randal J. Kirk
Title:
Chief Executive Officer
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