Ziopharm Oncology, Inc. Incentive Stock Option Agreement
Ziopharm
Oncology, Inc.
This
Stock Option Agreement is made and entered into as of the ___ day of
___________, 200__, between _________________ (“Employee”)
and
ZIOPHARM Oncology, Inc., a Delaware corporation (the “Company”).
Background
A. Employee
has been hired to serve as an employee of the Company or the Company desires
to
induce Employee to continue to serve the Company as an employee.
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
Employee, 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, the Company hereby irrevocably
grants from the Plan to Employee 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 Employee. Except as provided herein in paragraph 4, the Option
shall vest in Employee in ___ annual installments beginning on the first
anniversary of the date of this Agreement and continuing on each subsequent
anniversary date, so long as Employee remains an employee of the Company (each
such date is hereinafter referred to singularly as a “Vesting
Date”
and
collectively as “Vesting
Dates”),
until
the Option is fully vested, as set forth at the end of this Agreement after
“Vesting
Schedule:”.
4. Termination
of Employment.
In the
event that the Employee ceases to be employed by 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 Employee'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 Employee ceases to be employed by the Company, for any reason or
no
reason, with or without cause, Employee or his/her legal representative shall
have ninety (90) days from the date of such termination of his/her position
as
an employee, 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.
Employee, 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 Employee 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 Employee, Employee’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.
Employee 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, Employee 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. Employee 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. Incentive
Stock Option.
The
Company intends that the Option shall be an incentive stock option governed
by
the provisions of Section 422 of the Internal Revenue Code of 1986, as amended
(the “Code”).
The
terms of the Plan and the Option shall be interpreted and administered so as
to
satisfy the requirements of the Code.
10. Employee
Representations.
Employee hereby represents and warrants that Employee has reviewed with his
or
her own tax advisors the federal, state, and local tax consequences of the
transactions contemplated by this Agreement. Employee is relying solely on
such
advisors and not on any statements or representation of the Company or any
of
its agents. Employee 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.
11. 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.
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Chief Executive Officer
|
If
to Employee:
______________________________
______________________________
______________________________
|
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: |
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EMPLOYEE:
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Exercise
Price:
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$ /share | Name: | |
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ZIOPHARM
Oncology, INC.
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| By: | |||
| Its: |
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Vesting
Schedule:
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No.
of Shares To Be Vested
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Vesting
Date
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3
