ZIOPHARM, INC. Option for the Purchase of Shares of Common Stock
THE
SECURITIES REPRESENTED BY THIS OPTION ARE NOT TRANSFERABLE WITHOUT THE EXPRESS
WRITTEN CONSENT OF XXXXXXXX, INC. (THE "COMPANY") AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN EXEMPTION FROM SUCH ACT. ANY
SUCH
TRANSFER MAY ALSO BE SUBJECT TO APPLICABLE STATE SECURITIES
LAWS.
ZIOPHARM,
INC.
Option
for the Purchase of Shares of
Common
Stock
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No.
MDACC-_
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_______ Shares
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FOR
VALUE
RECEIVED, ZIOPHARM, INC., a Delaware corporation (the "Company"), hereby
certifies that THE UNIVERSITY OF TEXAS M.D. XXXXXXXX CANCER CENTER or
its registered assigns (the "Holder") is entitled to purchase from the Company,
subject to the provisions of this Option, at any time following the Vesting
Date
(as defined below) and prior to 5:00 P.M. Eastern Standard Time on the date
that
is five years from the Vesting Date (the "Termination Date"), fully paid and
non-assessable shares of the Common Stock, $.001 par value, of the Company
("Common Stock") at an initial per share exercise price equal to
$0.001(the
"Per
Share Exercise Price"), or an aggregate exercise price of (the
"Aggregate Exercise Price"). The shares of Common Stock deliverable upon such
exercise are sometimes referred to in this Option as the "Option Shares."
1) Exercise
of Option.
(a) Following
the Vesting Date and prior to the Termination Date, this Option may be exercised
in whole or in part, from time to time, by the Holder by presentation and
surrender of this Option (with the subscription form attached to this Option
duly executed) at the address set forth in Section 8 of this Option, together
with payment, by certified or official bank check or wire transfer payable
to
the order of the Company, of the Aggregate Exercise Price or the proportionate
part of such Aggregate Exercise Price if exercised in part.
(b) If
this
Option is exercised only in part, the Company shall, upon presentation of this
Option upon such exercise, execute and deliver (with the certificate for the
Option Shares purchased) a new Option evidencing the rights of the Holder of
this Option to purchase the balance of the Option Shares purchasable under
this
Option upon the same terms and conditions as set forth in this Option. Upon
proper exercise of this Option, the Company promptly shall deliver certificates
for the Option Shares to the Holder duly legended as authorized by the
subscription form. No fractional shares shall be issued upon exercise of this
Option. Any fractional number of shares called for upon exercise of this Option
shall be rounded down to the nearest whole share.
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2) Vesting
of
Options.
3) Protection
Against Dilution.
(a) In
case
the Company shall (i) pay a dividend or make a distribution on its capital
stock
in shares of Common Stock or any other capital stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares
or (iv) reclassify its Common Stock or effect a capital reorganization of the
Company,
or
in
case of the consolidation of the Company with or the merger of the Company
with
or into any other company or of the sale of the properties and assets of the
Company as, or substantially as, an entirety to any other company,
then the
number and type of unexercised Option Shares subject to this Option shall be
proportionately adjusted so that the Holder shall be entitled to receive the
aggregate number and type of shares or other property that, if the unexercised
Option Shares had been exercised in full immediately prior to such time, the
Holder would have owned upon such exercise and been entitled to receive upon
such dividend, subdivision, combination, reclassification or recapitalization.
Whenever the number of shares issuable upon exercise of this Option is adjusted
pursuant to this Section 3(a), the Per Share Exercise Price shall simultaneously
be adjusted by multiplying the number of unexercised Option Shares issuable
upon
exercise of this Option by the Per Share Exercise Price in effect on the date
thereof and dividing the product so obtained by the number of Option Shares
issuable upon exercise of the Option immediately following the adjustments
made
in 3(a) above. Such adjustment shall be made successively whenever any event
listed in this paragraph 3(a) shall occur. An adjustment made pursuant to this
Subsection 3(a) shall become effective immediately after the record date in
the
case of a dividend or distribution and shall become effective immediately after
the effective date in the case of a subdivision, combination or
reclassification.
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(b) If,
as a
result of an adjustment made pursuant to this Section 3, the Holder shall become
entitled to receive shares of two or more classes of capital stock or shares
of
Common Stock and other capital stock of the Company upon surrender of this
Option , the Board of Directors (whose determination shall be conclusive and
shall be described in a written notice to the Holder promptly after such
adjustment) shall determine the allocation of the adjusted Per Share Exercise
Price between or among shares or such classes of capital stock or shares of
Common Stock and other capital stock.
(c) When
any
adjustment is required to be made in the number or kind of shares purchasable
upon exercise of the Option, the Company shall promptly notify the Holder of
such event and of the number of shares of securities or property thereafter
purchasable upon exercise of the Option. Whenever the Company intends to declare
a dividend or other distribution on its Common Stock, it shall provide Company
notice at least thirty (30) days prior to the record date for such dividend
or
distribution.
4) Reservation
of Option Shares; Fully Paid Shares; Taxes.
The
Company hereby undertakes until expiration of this Option to reserve for
issuance or delivery upon exercise of this Option, such number of shares of
the
Common Stock as shall be required for issuance and/or delivery upon exercise
of
this Option in full, and agrees that all Option Shares so issued and/or
delivered will be validly issued, fully-paid and non-assessable, and further
agrees to pay all taxes and charges that may be imposed upon such issuance
and/or delivery.
5) Limited
Transferability.
This
Option may not be sold, transferred, assigned or hypothecated by the Holder
except in compliance with the provisions of the Securities Act of 1933, as
amended (the "Act"), and the applicable state securities or "blue sky" laws,
and
is so transferable only upon the books of the Company which the Company shall
cause to be maintained for such purpose. The Company may treat the registered
holder of this Option as such holder appears on the Company's books at any
time
as the holder for all purposes. All Options issued upon the transfer or
assignment of this Option will be dated the same date as this Option, and all
rights of the holder of such Option shall be identical to those of the Holder
and upon such transfer or assignment, the Holder shall have no further rights
under this Option.
6) Loss,
etc., of Option.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Option, and of indemnity satisfactory to the Company,
if
lost, stolen or destroyed, and upon surrender and cancellation of this Option,
if mutilated, the Company shall execute and deliver to the Holder a new Option
of like date, tenor and denomination.
7) Status
of Holder.
This
Option does not confer upon the Holder any right to vote or to consent to or
receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise of this Option. If this Option is exercised only in part, the
Holder shall have no such rights or liabilities with respect to any unexercised
portion of this Option.
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8) Notices.
No
notice or other communication under this Option shall be effective unless,
but
any notice or other communication shall be effective and shall be deemed to
have
been given if, the same is in writing and is mailed by first-class mail, postage
prepaid, addressed to:
If
to the
Holder:
If
to the
Company: Ziopharm,
Inc.
000
Xxxxxxx Xxxxxx, 00xx
Floor
New
York,
NY 10019
Attn:
Secretary
9) Investment
Intent.
(a) The
Holder represents by accepting this Option that it understands that this Option
and any securities obtainable upon exercise of this Option have not been
registered for sale under Federal or state securities laws and are being offered
and sold to the Holder pursuant to one or more exemptions from the registration
requirements of such securities laws. The Holder is an "accredited investor"
within the meaning of Regulation D under the Act. In the absence of an effective
registration of such securities or an exemption from such registration any
certificates for such securities shall bear the legend set forth on the first
page of this Option. The Holder understands that it must bear the economic
risk
of its investment in this Option and any securities obtainable upon exercise
of
this Option for an indefinite period of time, as this Option and such securities
have not been registered under Federal or state securities laws and therefore
cannot be sold unless subsequently registered under such laws, unless as
exemption from such registration is available.
(b) The
Holder, by its acceptance of this Option, represents to the Company that it
is
acquiring this Option and will acquire any securities obtainable upon exercise
of this Option for its own account for investment and not with a view to, or
for
sale in connection with, any distribution of such securities in violation of
the
Act. The Holder agrees that this Option and any such securities will not be
sold
or otherwise transferred unless (i) a registration statement with respect to
such transfer is effective under the Act and any applicable state securities
laws or (ii) such sale or transfer is made pursuant to one or more exemptions
from the Act.
10) Headings.
The
headings of this Option have been inserted as a matter of convenience and shall
not affect the construction of this Option.
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11) Applicable
Law.
This
Option shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of law. The parties
agree to settle any disputes through binding arbitration in the city, county
and
State of New York.
The
Company has caused this Option to be signed by its President and attested by
its
Secretary on August 30, 2004.
| ZIOPHARM INC. | ||
| |
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| Date: | By: | |
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Name: Xxxxxxxx Xxxxx, M.D. |
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| Title: Chief Executive Officer | ||
| ATTEST: | ||
|
Xxxxx
X. Xxxxx
Secretary
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SUBSCRIPTION
The
undersigned, ___________________, pursuant to the provisions of the foregoing
Option, hereby elects to exercise the foregoing Option to the extent of
purchasing ____________________ shares of Common Stock under such Option and
hereby makes payment of $___________ by certified or official bank check in
payment of the exercise price for such Option .
The
undersigned hereby represents and warrants to the Company that the undersigned
is acquiring the shares of the Company's Common Stock pursuant to exercise
of
the foregoing Option for investment purposes only. The undersigned hereby
further acknowledges that the undersigned understands that such shares (a)
have
not been registered under the Securities Act of 1933, as amended (the "Act"),
and are being issued to the undersigned by the Company in reliance upon the
foregoing representation and warranty and (b) may not be resold except in
accordance with the requirements of the Act, including Rule 144 under the Act,
if applicable. The undersigned further consents to the placing of a legend
on
the certificates for the shares being purchased to the foregoing
effect.
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Date:
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_______________
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Signature:
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____________________
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Address:
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______________________
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6
ASSIGNMENT
FOR
VALUE
RECEIVED, _______________ hereby sells, assigns and transfers unto
____________________ the foregoing Option and all rights evidenced by such
Option, and does irrevocably constitute and appoint _____________________,
attorney, to transfer such Option on the books of
____________________.
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Date:
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_______________
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Signature:
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____________________
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Address:
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______________________
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7
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _______________ hereby assigns and transfers unto ____________________
the right to purchase _______ shares of the Common Stock of ZIOPHARM, INC.
covered by the foregoing Option, and a proportionate part of such Option and
the
rights evidenced by such Option, and does irrevocably constitute and appoint
____________________, attorney, to transfer that part of such Option on the
books of ZIOPHARM, INC.
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Date:
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_______________
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Signature:
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____________________
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Address:
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______________________
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