CERTIFICATE
OF INCORPORATION
of
ZIOPHARM
Oncology, Inc.
ZIOPHARM
Oncology, Inc., a corporation organized and existing under the laws of the
State
of Delaware, hereby certifies as follows:
1.
The
name
of the corporation is ZIOPHARM Oncology, Inc., formerly known as EasyWeb, Inc.
The date of filing of its original Certificate of Incorporation with the
Secretary of State was May 16, 2005.
2.
That
the
Board of Directors of the corporation adopted resolutions, in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware, setting
forth a proposed Amended and Restated Certificate of Incorporation (the “Amended
and Restated Certificate”), declaring the Amended and Restated Certificate to be
advisable. The resolution setting forth the proposed Amended and Restated
Certificate is as follows:
“RESOLVED,
that, subject to the approval of the holders of a majority of the outstanding
shares of the Corporation’s common stock, par value $.001 per share (the “Common
Stock”), the Corporation’s Amended Certificate of Incorporation shall be amended
and restated in the manner set forth on the attached Exhibit A.”
[Please
see Exhibit A attached hereto.]
3.
This
Amended and Restated Certificate was duly adopted by vote of the stockholders
of
the Corporation in accordance with the provisions of Sections 222, 242 and
245
of the General Corporation Law of the State of Delaware.
4.
That
the
Amended and Restated Certificate was duly adopted in accordance with the
applicable provisions of Sections 222, 242 and 245 of the General Corporation
Law of the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this document to be executed in
its
corporate name as of this 26
th
day of
April, 2006.
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ZIOPHARM
Oncology,
Inc.
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By:
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/s/
Jonathan Lewis
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Jonathan
Lewis,
Chief
Executive Officer
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EXHIBIT
A
1.
Name.
The name
of the corporation is ZIOPHARM Oncology, Inc. (the “Corporation”).
2.
Address;
Registered Office and Agent.
The
address of the Corporation’s registered office is 2711 Centerville Road Suite
400, Wilmington, Delaware 19808. The Corporation may from time to time, in
the
manner provided by law, change the registered agent and the registered office
within the State of Delaware. The Corporation may also maintain offices for
the
conduct of its business, either within or without the State of
Delaware.
3.
Purposes.
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation
Law.
4.
Number
of Shares.
The
total number of shares of all classes of stock that the Corporation shall have
authority to issue is Two Hundred Eighty Million (280,000,000) shares consisting
of: Two Hundred Fifty Million (250,000,000) shares of common stock, $.001 par
value per share (“Common Stock”); and Thirty Million (30,000,000) shares of
preferred stock, $.001 par value per share (“Preferred Stock”).
The
Preferred Stock may be divided into, and may be issued from time to time in
one
or more series. The Board of Directors of the Corporation (the “Board”) is
authorized from time to time to establish and designate any such series of
Preferred Stock, to fix and determine the variations in the relative rights,
preferences, privileges and restrictions as between and among such series and
any other class of capital stock of the Corporation and any series thereof,
and
to fix or alter the number of shares comprising any such series and the
designation thereof. The authority of the Board from time to time with respect
to each such series shall include, but not be limited to, determination of
the
following:
a.
The
designation of the series;
b.
The
number of shares of the series and (except where otherwise provided in the
creation of the series) any subsequent increase or decrease
therein;
c.
The
dividends, if any, for shares of the series and the rates, conditions, times
and
relative preferences thereof;
d.
The
redemption rights, if any, and price or prices for shares of the
series;
e.
The
terms
and amounts of any sinking fund provided for the purchase or redemption of
the
series;
f.
The
relative rights of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;
g.
Whether
the shares of the series shall be convertible into shares of any other class
or
series of shares of the Corporation, and, if so, the specification of such
other
class or series, the conversion prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and
all
other terms and conditions upon which such conversion may be made;
h.
The
voting rights, if any, of the holders of such series; and
i.
Such
other designations, powers, preference and relative, participating, optional
or
other special rights and qualifications, limitations or restrictions
thereof.
5.
Election
of Directors.
Unless
and except to the extent that the by-laws of the Corporation (the “By-laws”)
shall so require, the election of directors of the Corporation need not be
by
written ballot.
6.
Limitation
of Liability.
To the
fullest extent permitted under the General Corporation Law, as amended from
time
to time, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Any amendment, repeal or modification of the foregoing
provision shall not adversely affect any right or protection of a director
of
the Corporation hereunder in respect of any act or omission occurring prior
to
the time of such amendment, repeal or modification.
7.
Indemnification.
7.1
Right
to Indemnification.
The
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be amended, any person
(a “Covered Person”) who was or is made or is threatened to be made a party or
is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a “Proceeding”), by reason of the
fact that he or she, or a person for whom he or she is the legal representative,
is or was a director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity (an “Other
Entity”), including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys’ fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in Section 7.3, the Corporation shall be required to
indemnify a Covered Person in connection with a Proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such Proceeding
(or
part thereof) by the Covered Person was authorized by the Board.
7.2
Prepayment
of Expenses.
The
Corporation shall pay the expenses (including attorneys’ fees) incurred by a
Covered Person in defending any Proceeding in advance of its final disposition,
provided, however, that, to the extent required by applicable law, such payment
of expenses in advance of the final disposition of the Proceeding shall be
made
only upon receipt of an undertaking by the Covered Person to repay all amounts
advanced if it should be ultimately determined that the Covered Person is not
entitled to be indemnified under this Article 7 or otherwise.
7.3
Claims.
If a
claim for indemnification or advancement of expenses under this Article 7 is
not
paid in full within 30 days after a written claim therefor by the Covered Person
has been received by the Corporation, the Covered Person may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any
such
action the Corporation shall have the burden of proving that the Covered Person
is not entitled to the requested indemnification or advancement of expenses
under applicable law.
7.4
Nonexclusivity
of Rights.
The
rights conferred on any Covered Person by this Article 7 shall not be exclusive
of any other rights that such Covered Person may have or hereafter acquire
under
any statute, provision of this Certificate of Incorporation, the By-laws,
agreement, vote of stockholders or disinterested directors or
otherwise.
7.5
Other
Sources.
The
Corporation’s obligation, if any, to indemnify or to advance expenses to any
Covered Person who was or is serving at its request as a director, officer,
employee or agent of an Other Entity shall be reduced by any amount such Covered
Person may collect as indemnification or advancement of expenses from such
Other
Entity.
7.6
Amendment
or Repeal.
Any
repeal or modification of the foregoing provisions of this Article 7 shall
not
adversely affect any right or protection hereunder of any Covered Person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
7.7
Other
Indemnification and Prepayment of Expenses.
This
Article 7 shall not limit the right of the Corporation, to the extent and in
the
manner permitted by applicable law, to indemnify and to advance expenses to
persons other than Covered Persons when and as authorized by appropriate
corporate action.
8.
Adoption,
Amendment and/or Repeal of By-Laws.
In
furtherance and not in limitation of the powers conferred by the laws of the
State of Delaware, the Board is expressly authorized to make, alter and repeal
the By-laws, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law whether adopted by them or otherwise.
9.
Certificate
Amendments.
The
Corporation reserves the right at any time, and from time to time, to amend,
alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, and other provisions authorized by the laws of
the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by applicable law; and all rights, preferences
and
privileges of whatsoever nature conferred upon stockholders, directors or any
other persons whomsoever by and pursuant to this Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this article.