ZIOPHARM Oncology, Inc. Stock Option Agreement (Non-Statutory)
ZIOPHARM
Oncology, Inc.
(Non-Statutory)
This
Stock Option Agreement is made and entered into as of the ___ day of
______________, 200__, between _____________________ (“Director”)
and
ZIOPHARM Oncology, Inc., a Delaware corporation (the “Company”).
Background
A. Director
is serving as a member of the Board of Directors of the Company (the
“Board”)
and is
not an employee of the Company or any of its subsidiaries (a “Non-Employee
Director”)
and
the Company desires to award Director for his or her services to the
Company.
B The
Company has adopted the 2003 Stock Option Plan (the “Plan”)
pursuant to which shares of common stock of the Company have been reserved
for
issuance under the Plan.
Now,
Therefore,
the
parties hereto agree as follows:
1. Incorporation
by Reference.
The
terms and conditions of the Plan, a copy of which has been delivered to
Director, are hereby incorporated herein and made a part hereof by reference
as
if set forth in full. In the event of any conflict or inconsistency between
the
provisions of this Agreement and those of the Plan, the provisions of the Plan
shall govern and control.
2. Grant
of Option; Purchase Price.
Subject
to the terms and conditions herein set forth, including without limitation
the
stockholder approval requirement set forth in Section 11 below, the Company
hereby irrevocably grants from the Plan to Director the right and option,
hereinafter called the “Option”,
to
purchase all or any part of an aggregate of the number of shares of common
stock, $.001 par value per share, of the Company (the “Shares”)
set
forth at the end of this Agreement after “Number
of Shares:”
at
the
price per Share set forth at the end of this Agreement after “Purchase
Price:”.
3. Exercise
and Vesting of Option.
The
Option shall be exercisable only to the extent that all, or any portion thereof,
has vested in the Director. Except as provided herein in paragraph 4, the Option
shall vest in Director in two (2) equal annual installments of fifty percent
(50%) of the total grant beginning on the first anniversary of the date of
this
Agreement, with an additional fifty (50%) of the total grant becoming
exercisable on the second anniversary of such date, so long as Director remains
a Non-Employee Director of the Company (each such date is hereinafter referred
to singularly as a “Vesting
Date”
and
collectively as “Vesting
Dates”).
4. Termination
of Relationship with the Company.
In the
event that the Director shall cease to be a Non-Employee Director of the
Company, for any reason or no reason, with or without cause, prior to any
Vesting Date, that part of the Option scheduled to vest on such Vesting Date,
and all parts of the Option scheduled to vest in the future, shall not vest
and
all of Director's rights to and under such non-vested parts of the Option shall
terminate.
5. Term
of Option.
To the
extent vested, and except as otherwise provided in this Agreement, the Option
shall be exercisable for ten (10) years from the date of this Agreement;
provided,
however,
that in
the event Director ceases to be a Non-Employee Director of the Company, for
any
reason or no reason, with or without cause, Director or his/her legal
representative shall have ninety (90) days from the date of such termination
of
his/her being a Non-Employee Director, or, if earlier, upon the expiration
date
of the Option as set forth above, to exercise any part of the Option vested
pursuant to Section 3 of this Agreement. Upon the expiration of such ninety
(90)
day period, or, if earlier, upon the expiration date of the Option as set forth
above, the Option shall terminate and become null and void.
6. Rights
of Option Holder.
Director, as holder of the Option, shall not have any of the rights of a
shareholder with respect to the Shares covered by the Option except to the
extent that one or more certificates for such Shares shall be delivered to
him
or her upon the due exercise of all or any part of the Option. Nothing contained
in this Agreement shall be deemed to grant Director any right to continue in
the
employ of the Company for any period of time or to any right to continue his
or
her present or any other rate of compensation, nor shall this Agreement be
construed as giving Director, Director’s beneficiaries or any other person any
equity or interests of any kind in the assets of the Company or creating a
trust
of any kind or a fiduciary relationship of any kind between the Company and
any
such person.
7. Transferability.
The
Option shall not be transferable except to the extent permitted by the
Plan.
8. Securities
Law Matters.
Director acknowledges that the Shares to be received by him or her upon exercise
of the Option may have not been registered under the Securities Act of 1933
or
the Blue Sky laws of any state (collectively, the “Securities
Acts”).
If
such Shares have not been so registered, Director acknowledges and understands
that the Company is under no obligation to register, under the Securities Acts,
the Shares received by him or her or to assist him or her in complying with
any
exemption from such registration if he or she should at a later date wish to
dispose of the Shares. Director acknowledges that if not then registered under
the Securities Acts, the Shares shall bear a legend restricting the
transferability thereof, such legend to be substantially in the following
form:
“The
shares represented by this certificate have not been registered or qualified
under federal or state securities laws. The shares may not be offered for sale,
sold, pledged or otherwise disposed of unless so registered or qualified, unless
an exemption exists or unless such disposition is not subject to the federal
or
state securities laws, and the Company may require that the availability or
any
exemption or the inapplicability of such securities laws be established by
an
opinion of counsel, which opinion of counsel shall be reasonably satisfactory
to
the Company.”
9. Director
Representations.
Director hereby represents and warrants that Director has reviewed with his
or
her own tax advisors the federal, state, and local tax consequences of the
transactions contemplated by this Agreement. Director is relying solely on
such
advisors and not on any statements or representation of the Company or any
of
its agents. Director understands that he or she will be solely responsible
for
any tax liability that may result to him or her as a result of the transactions
contemplated by this Agreement. The Option, if exercised, will be exercised
for
investment and not with a view to the sale or distribution of the Shares to
be
received upon exercise thereof.
10. Notices.
All
notices and other communications provided in this Agreement will be in writing
and will be deemed to have been duly given when received by the party to whom
it
is directed at the following addresses:
2
|
If
to the Company:
ZIOPHARM
Oncology, Inc.
1180
Avenue of the Americas, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Chief Executive Officer
|
If
to Director:
_________________________________________
_________________________________________
_________________________________________
|
11. Stock
Approval of Increase in Shares Reserved under 2003 Stock Option
Plan.
As set
forth in Section 12(a) below, the Option is granted pursuant to the Plan and
is
governed by the terms thereof. The Company intends to submit a proposal (the
“Proposal”)
to its
stockholders at its 2006 annual stockholders meeting (the “Annual
Meeting”)
to
increase the number of shares approved for issuance under the Plan.
Notwithstanding any provision to the contrary contained in this Agreement,
the
Company’s grant of the Option hereunder is subject in all respects to receipt of
stockholder approval for the Proposal at the Annual Meeting or any adjournment
thereof. In the event the Proposal is not approved by the Company’s shareholders
at the Annual Meeting or any adjournment thereof, the Option shall be null
and
void and have no further force or effect.
12. General.
(a) The
Option is granted pursuant to the Plan and is governed by the terms thereof.
The
Company shall at all times during the term of the Option reserve and keep
available such number of Shares as will be sufficient to satisfy the
requirements of this Option Agreement.
(b) Nothing
herein expressed or implied is intended or shall be construed as conferring
upon
or giving to any person, firm, or corporation other than the parties hereto,
any
rights or benefits under or by reason of this Agreement.
(c) Each
party hereto agrees to execute such further documents as may be necessary or
desirable to effect the purposes of this Agreement.
(d) This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
agreement.
(e) This
Agreement, in its interpretation and effect, shall be governed by the laws
of
the State of New York applicable to contracts executed and to be performed
therein.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
| Number of Shares: |
|
DIRECTOR:
|
|
|
Exercise
Price:
|
$ /share | Name: | |
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ZIOPHARM
Oncology, INC.
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| By: |
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