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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
October 22,
2020
Robert W. Postma
Principal
WaterMill Asset Management Corp.
141 Mecox Road
Watermill, New York 11976
Re: Ziopharm Oncology, Inc.
PREC14A preliminary proxy statement filing made on Schedule
14A
Filed on October 16, 2020 by WaterMill Asset Management Inc.,
et al.
File No. 001-33038
Dear Mr. Postma,
We have reviewed the above-captioned filing, and have the following
comments. Some
of our comments may ask for additional information so that we may better
understand the disclosure.
Please respond to this letter by amending the consent statement and/or
by providing the
information requested. After reviewing any amendment and/or any information
provided in reply to
our comments, we may have additional comments. If you believe a comment is
inapplicable to your
facts and circumstances, and/or do not believe an amendment is required, please
tell us why in a
written response.
Preliminary Proxy Statement filed on Schedule 14A
Letter to Shareholders re: Consent Solicitation
1. Please provide us with the factual foundation for each of the following
assertions:
Shareholder Value Destruction ; Abysmal Corporate Governance ;
Poor Decision-
Making ; Lack of Transparency ; and highly qualified nominees.
Refer to Note b. of
Rule 14a-9. Alternatively, please revise to delete the cited assertions.
General
2. The disclosure on page 2 indicates the proxy statement will be sent or
given to security
holders as of an unspecified date. Regardless of the method by which the
proxy statement
will be made available to security holders, please disclose, in accordance
with the
participants obligation under Item 1(b) of Schedule 14A as well as Rule
14a-6(d), the
approximate date upon which the proxy statement and form of proxy will be
furnished to
security holders. The bolded language at the end of the last paragraph in
the letter to
shareholders is not considered the proxy statement. See Rule 14a-1(g) of
Regulation 14A.
Robert W. Postma
Ziopharm Oncology, Inc.
October 22, 2020
Page 2
3. Under a subheading titled Important Notice Regarding the Availability of
Consent
Materials , the disclosure at page 3 indicates that the proxy statement
will be available
electronically at a dedicated website. Please advise us whether or not the
participants will be
relying upon Rule 14a-16 to distribute the proxy statement electronically as
the primary
means of fulfilling their obligations under Rule 14a-3(a) and Rule 14a-4(f).
If so, please
summarize for us how compliance with Rule 14a-16 has been effectuated.
4. Given the multiple participants in the solicitation, use of a title for the
consent statement
limited to the name of one participant appears incomplete. Please revise or
advise.
5. The disclosure at page 5 indicates that on October 15, 2020, Mr. Postma
filed this
preliminary consent statement with the SEC. The filing was received on,
and bears a filing
a date of, October 16, 2020. Please revise.
6. Please revise to indicate, if true, that the approval of the bylaw repeal
proposal, Proposal
Number 1, could result in the repeal of bylaws aligned with security holder
interests.
7. Given that it appears a vacancy on the board may arise if Proposals 2 and 4
are approved but
Proposals 3 and 4 are not, please revise to indicate how any such vacancy
would be filled.
8. Given that it appears the maximum number of the participants director
candidates who could
be elected would still constitute a minority of directors serving the
registrant, please revise
the proxy statement to acknowledge this point and state that given the
absence of a majority,
no assurance can be given that the nominees would be able to establish
[and require
adherence to] best corporate governance practices or ensure management
accountability .
9. Disclosures on page 4 suggest that the possibility remains that broker
non-votes could exist.
Please provide us with a brief legal analysis regarding the permissibility
of broker non-votes
in the impending contested solicitation, or revise to remove this reference.
10. Notwithstanding the fact the participants do not appear to be relying upon
Rule 14a-4(d)(4)
in soliciting consents for the election of a minority of directors, in
actuality or effect, please
disclose, consistent with Rule 14a-4(d)(4)(iv), that no assurance can be
given that the
registrant's nominees will serve if elected with any of the soliciting
party's nominees.
11. Please refer to the following sentence on page 20: Each of the Nominees
may be deemed to
be a member of the Group [ ] together with the other Participants [ ] for
the purposes of
Section 13(d)(3) Given that the collective beneficial ownership of
the participants
appears to be 5% or less of the outstanding shares of Ziopharm, please
advise us, with a view
toward revised disclosure, whether this disclosure is necessary, and if so,
legally accurate.
Please ensure that if any changes are made, conforming changes will be made
to page 24.
12. Please advise, with a view toward revised disclosure, how an otherwise
unreported beneficial
ownership position of 3.3% could be accurately described as significant
on page12.
Robert W. Postma
Ziopharm Oncology, Inc.
October 22, 2020
Page 3
How Many Consents Must be Received in Order to Adopt the Proposals, page 7
13. Please refer to the following cited statements regarding the
above-captioned question:
. . . . the individuals receiving the highest number of consents in
favor of their election will
be elected up to the number of vacancies to be filled. (page 2)
For Proposal 5 (Election Proposal), the Participating Shareholders will
need to deliver
properly completed and unrevoked written consents from the holders of a
plurality of votes
cast as of the close of business on the Record Date. (page 3)
For Proposal 5 (the Election Proposal), directors are elected to the
Board to fill vacancies by
a plurality of the votes cast. Consequently, the Election Proposal will be
adopted and become
effective when properly completed, unrevoked consents are signed and
delivered to the
Company by a plurality of the votes cast within 60 calendar days of the
date of the earliest
dated consent delivered to the Company. (page 7)
the Participating Shareholders will need to deliver . . . properly
completed and unrevoked
written consents to Proposal 5 from a plurality of votes cast . . . .
(pages 7 and 22)
The election of any nominee to fill a vacancy on the Board pursuant to
Proposal 5, it appears,
may only be successful if Proposal 5, with respect to any given nominee, is
supported by the
unrevoked consents of holders of a majority of the common stock. Please
revise if true, or
advise us by producing a brief legal analysis in support of the citied
voting thresholds.
Proposal 4 the Board Size Proposal, page 17
14. The matter of whether the bylaws should be amended to provide shareholders
the exclusive
authority to fix the size of the Board may be a matter separate and
distinguishable from the
matter of whether the size of the Board should be fixed at seven directors.
Please provide us
with a brief legal analysis as to whether shareholders are being asked to
consent to two
separate matters bundled as a single proposal in contravention of Rule
14a-4(a)(3).
The Nominees, page 18
15. As required by Item 7(b) of Schedule 14A and corresponding Item 401(e)(1)
of Regulation
S-K, please provide a complete history of occupation or employment, without
gaps, for the
past five years for Mr. Vieser. At present, no information has been given
for 2017.
Robert W. Postma
Ziopharm Oncology, Inc.
October 22, 2020
Page 4
Additional Participant Information, page 24
16. The disclosure indicates that purchases of shares of common stock through
margin accounts
maintained with brokers which extend credit and that positions held in such
accounts may be
pledged as collateral for the repayment of debt balances in such accounts.
Item 5(b)(1)(vii)
of Schedule 14A, however, requires the disclosure of the amount of
indebtedness as of the
last practicable date used to purchase any shares. Please disclose the
amount of indebtedness
used to purchase shares as of the last practicable date or, if unavailable
without unreasonable
cost or expense, the amount of margin used to purchase securities of the
registrant.
Shareholder Proposals for Inclusion in Proxy Materials, page 25
17. The representation that if a shareholder does not notify the registrant
before March 15, 2021,
Ziopharm management will have discretionary authority to vote all proxies
received on the
matter appears to use an incorrect date. Because the registrant mailed its
2020 annual
meeting proxy materials on (or about) May 15, 2020, notice of a shareholder
proposal would
be considered untimely after April 3, 2021 under Rule 14a-4(c)(1). Please
revise or advise.
Special Instructions, page 27
18. Please refer to the disclosure in bold typeface that indicates security
holders will be deemed
to have consented to that proposal Please revise this disclosure, as
well as that within the
form of consent, to conform to the standards set forth in Rule 14a-4(b) of
Regulation 14A.
Certain Additional Information, page 28
19. Please advise us when the participants anticipate distributing the proxy
statement they intend
to use to solicit consents. Given that reliance on Rule 14a-5(c) is
impermissible at any time
before the registrant distributes its consent revocation statement, the
participants will accept
all legal risk in connection with distributing the initial definitive proxy
statement without all
required disclosures and should undertake to subsequently provide any
omitted information
in a supplement in order to mitigate that risk if it distributes in advance
of the registrant.
Form of Consent
20. The disclosure on page 2 of the proxy statement indicates that if the
participants receive
insufficient consents to approve Proposal 2, no consents would be delivered
to the registrant.
Notwithstanding this condition, please advise us, with a view toward
revised disclosure, how
the participants have complied with their remaining disclosure obligation
under Rule 14a-
4(e). At present, no commitment to present the consents as directed appears
to exist.
Robert W. Postma
Ziopharm Oncology, Inc.
October 22, 2020
Page 5
We remind you that the participants are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or inaction
by the staff.
You may contact me at (202) 551-3266 with any questions.
Sincerely,
/s/ Nicholas P.
Panos
Nicholas P. Panos
Senior Special
Counsel
Office of Mergers &
Acquisitions
cc: Mohammad M. Malik, Esq.