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): December 12, 2007
ZIOPHARM
Oncology, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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0-32353
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84-1475642
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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 10036
(Address
of principal executive offices) (Zip Code)
(646)
214-0700
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing 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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o
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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
5.02.
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Departure
of Directors or Principal Officers; Election of Directors; Appointment
of
Principal Officers; Compensatory Arrangements of Certain Officers.
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Approval
of Stock Incentives
Pursuant
to approval obtained at a meeting held December 12, 2007, the Company made
year-end stock option grants to employees and directors. Included among these
grants were stock options to purchase up to 100,000 and 75,000 shares,
respectively, issued to Dr. Jonathan Lewis and Richard Bagley, and stock options
to purchase up to 20,000 shares granted to the each of the Company’s
non-employee directors. The stock options were granted on December 12, 2007,
have an exercise price per share equal to $2.73 and vest in three equal annual
installments commencing on December 13, 2008, 2009 and 2010. In addition, the
Company’s board of directors approved grants of restricted stock to certain
employees, including a 25,000 share restricted stock grant to Mr. Bagley. The
grant is governed by a restricted stock agreement in substantially the form
attached as Exhibit 10.1. The agreement prohibits the holder from transferring
the restricted shares and provides that the shares will be forfeited without
consideration if the holder’s employment with the Company is terminated for any
reason or no reason. The transfer restrictions and forfeiture obligations are
scheduled to lapse on December 12, 2008.
Item
9.01 Financial Statements and Exhibits.
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(d)
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Exhibits.
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10.1
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Form
of Restricted Stock Agreement.
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1
SIGNATURE
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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(Registrant)
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Date:
December 18, 2007
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By:
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/s/ Richard E. Bagley
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Richard
E. Bagley,
President
and Chief
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Financial
Officer
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2
Exhibit
Index
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Exhibit
No.
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Description
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10.1
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Form
of Restricted Stock
Agreement.
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Exhibit
10.1
Form
of
Restricted Stock Agreement
ZIOPHARM
Oncology, Inc.
Restricted
Stock Agreement
This
Restricted Stock Agreement (this
“Agreement”)
made
effective as of _____________, 200__, is by and between ZIOPHARM Oncology,
Inc.,
a Delaware corporation (the “Company”),
and
_________________________ (the “Employee”).
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. Grant
of Stock.
Subject
to the terms and provisions of this Agreement and the Plan, the Company hereby
grants to Employee ______________________ (_______) shares of the Company’s
common stock (such shares are referred to hereinafter as the “Shares”).
Upon
the execution of this Agreement, the Shares shall be registered on the books
of
the Company, and the Company shall cause the transfer agent and registrar of
its
common stock to issue a certificate in Employee’s name evidencing the Shares
(the “Stock
Certificate”).
Employee shall immediately thereafter deposit with the Company, together with
a
stock power endorsed in blank by Employee, the Stock Certificate to be held
by
the Company until such time as the restrictions set forth herein and under
the
Plan have lapsed pursuant to paragraph 4 of this Agreement. The Stock
Certificate shall bear a legend in substantially the following
form:
The
transferability of this certificate and the shares of Common Stock represented
by it are subject to the terms and conditions (including conditions of
forfeiture) contained in the 2003 Stock Option Plan of ZIOPHARM Oncology, Inc.
(the “Company”), and an agreement entered into between the registered owner and
the Company. A copy of the 2003 Stock Option Plan and the agreement is on file
in the office of the secretary of the Company.
2. Rights
of Employee.
Upon
the execution of this Agreement and issuance of the Shares, Employee shall
become a stockholder with respect to the Shares and shall have all of the rights
of a stockholder with respect to the Shares, including the right to vote the
Shares and to receive all dividends and other distributions paid with respect
to
the Shares; provided,
however,
that
the Shares shall be subject to the restrictions set forth in paragraph 3 of
this
Agreement.
Notwithstanding
the preceding paragraph, the Company’s compensation committee may, in its
discretion, instruct the Company to withhold any stock dividends or stock splits
issued on or with respect to Shares that are subject to the restrictions
provided for in paragraph 3 of this Agreement, which stock dividends or splits
shall also be subject to the restrictions provided for in paragraph 3 of this
Agreement.
3. Restrictions.
Employee agrees that, in addition to the restrictions set forth in the Plan,
at
all times prior to the vesting of the Shares as contemplated by paragraph 4
hereof:
(a) Employee
shall not sell, transfer, pledge, hypothecate or otherwise encumber the Shares;
and
(b) In
the
event of termination of Employee’s employment with the Corporation (for any
reason or no reason, and regardless of whether such termination is voluntary
or
involuntary on the part of Employee), then, subject to paragraph 4 hereof,
Employee shall, for no consideration, forfeit and transfer to the Company all
of
the Shares that remain subject to the restrictions set forth in this paragraph
3.
4. Lapse
of Restrictions.
The
restrictions set forth in paragraph 3 shall lapse in their entirety on December
1, 2008. Upon request of Employee at any time after the date that the
restrictions set forth in paragraph 3 of this Agreement have lapsed and the
Shares have become vested, free and clear of all restrictions, except as
provided in the Plan, the Company shall remove any restrictive notations placed
on the books of the Company and the Stock Certificate in connection with such
restrictions.
5. Copy
of the Plan.
By the
execution of this Agreement, Employee acknowledges receipt of a copy of the
Plan, the terms of which are hereby incorporated herein by reference and made
a
part hereof by reference as if set forth in full.
6. Continuation
of Employment.
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. Withholding
of Tax.
To the
extent that the receipt of the Shares or the lapse of any restrictions thereon
results in income to Employee for federal or state income tax purposes, Employee
shall deliver to the Company at the time of such receipt or lapse, as the case
may be, such amount of money as the Company may require to meet its withholding
obligation under applicable tax laws or regulations, and, if Employee fails
to
do so, the Company is authorized to withhold from any cash or stock remuneration
then or thereafter payable to Employee any tax required to be withheld by reason
of such resulting compensation income.
8.
Section
83(b) Election.
Employee understands that Employee shall be responsible for his own federal,
state, local or foreign tax liability and any of his other tax consequences
that
may arise as a result of transactions in the Shares. Employee shall rely solely
on the determinations of Employee’s tax advisors or Employee’s own
determinations, and not on any statements or representations by the Company
or
any of its agents, with regard to all such tax matters. Employee understands
that Section 83 of the Internal Revenue Code of 1986, as amended, (the
“Code”)
taxes
as ordinary income the difference between the amount paid for the Shares and
the
fair market value of the Shares as of the date any restrictions on the Shares
lapse. Employee understands that Employee may elect to be taxed at the time
the
Shares are received rather than when and as the restrictions on the Shares
lapse
or expire by filing an election under Section 83(b) of the Code with the
Internal Revenue Service within 30 days from the date of the acquisition. In
the
event Employee files an election under Section 83(b) of the Code, such election
shall contain all information required under the applicable treasury
regulation(s) and Employee shall deliver a copy of such election to the Company
contemporaneously with filing such election with the Internal Revenue Service.
CONSULTANT ACKNOWLEDGES THAT IT IS CONSULTANT’S SOLE RESPONSIBILITY AND NOT THE
COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(B) OF THE CODE, EVEN IF
CONSULTANT REQUESTS THAT THE COMPANY OR ITS REPRESENTATIVES MAKE THIS FILING
ON
CONSULTANT’S BEHALF.
9. General.
(a) This
Agreement may be amended only by a written agreement executed by the Company
and
Consultant.
(b) This
Agreement and the Plan embody the entire agreement made between the parties
hereto with respect to matters covered herein and shall not be modified except
in accordance with paragraph 9 of this Agreement.
(c) 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
parties have executed this Restricted Stock Agreement to be effective as of
the
date first set forth above.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
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EMPLOYEE:
_______________________________________
Name:
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ZIOPHARM
Oncology, Inc.:
_______________________________________
By:
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