Unassociated Document
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): September 13, 2005
 
 
ZIOPHARM Oncology, Inc.
(Exact name of registrant as specified in its charter)
 
Delaware
 
0-32353
 
84-1475642
 
(State or other jurisdiction of
incorporation)
 
(Commission File Number)
 
(IRS Employer Identification No.)
 

 
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)
 
 
EasyWeb, Inc.
6025 S. Quebec Street, Suite 135
Englewood, Colorado
(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:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 

Item 2.01. Completion of Acquisition or Disposition of Assets.
 
Reverse Merger Transaction; Acquisition of ZIOPHARM, Inc.
 
Pursuant to an Agreement and Plan of Merger dated August 3, 2005 (the “Merger Agreement”), by and among EasyWeb, Inc. (now known as ZIOPHARM Oncology, Inc.)(the “Company”), ZIO Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the Company, and ZIOPHARM, Inc., a Delaware corporation whose business is the development and commercialization of drugs for the treatment of cancer (“ZIOPHARM”), ZIO Acquisition Corp. merged with and into ZIOPHARM, with ZIOPHARM remaining as the surviving entity and a wholly owned operating subsidiary of the Company. This transaction is referred to throughout this report as the “Merger.” The Merger was effective as of September 13, 2005, upon the filing of a certificate of merger with the Delaware Secretary of State.
 
At the effective time of the Merger, the legal existence of ZIO Acquisition Corp. ceased and all of the 13,908,772 shares of ZIOPHARM capital stock that were outstanding immediately prior to the Merger were cancelled, with one share of ZIOPHARM common stock issued to the Company. Simultaneously, the former holders of ZIOPHARM capital stock received an aggregate of 6,967,941 shares of the Company’s common stock, representing approximately 97.3% of the Company’s common stock outstanding after the Merger. In addition, all securities convertible into and exercisable for shares of ZIOPHARM capital stock outstanding immediately prior to the Merger were cancelled, and the holders thereof received similar securities convertible into an aggregate of 1,366,846 shares of the Company’s common stock.
 
Prior to the Merger, the Company effected a 1-for-40 share combination (i.e., reverse stock split) of its capital stock. The share combination was approved by Company’s stockholders at a special stockholder meeting held on February 28, 2005. As a result of the share combination, the Company had 189,922 shares of common stock outstanding immediately prior to the Merger.
 
The Merger represents a change in control of the Company inasmuch as greater than 50% of the issued and outstanding voting stock of Company on a post-Merger basis is now held by the former holders of ZIOPHARM capital stock. As of the date of this report, there were 7,157,863 shares of Company capital stock outstanding, all of which is common stock.
 
The Merger Agreement was filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on August 9, 2005, and is incorporated herein by reference. The foregoing description of the Merger Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entireties by reference to the Merger Agreement.
 
On September 13, 2005, the Company’s board of directors approved a transaction pursuant to which ZIOPHARM merged with and into the Company, leaving the Company as the surviving corporation. In connection with this merger, the Company relinquished its corporate name and assumed in its place the name “ZIOPHARM Oncology, Inc.” The merger and name change became effective on September 14, 2005, upon the filing of a certificate of ownership with the Delaware Secretary of State.
 
Unless otherwise provided in this report, all references in this report to “we,”“us,”“our company,”“our,” or the “Company” refer to the combined ZIOPHARM Oncology, Inc. entity.
 
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Description of Business of ZIOPHARM Oncology, Inc.
 
General
 
ZIOPHARM Oncology, Inc. is a development-stage company that is seeking to develop and commercialize a diverse, risk-sensitive portfolio of in-licensed cancer drugs that address unmet medical needs. The Company’s management and advisors are focused on licensing proprietary drug candidate families that are related to cancer therapeutics on the market where the application of new biological understanding and the Company’s drug development expertise will lead to a lower risk for clinical development failure while expediting clinical registration. The Company expects to commercialize its products on its own in North America but recognizes that promising clinical trial results in cancers with a high incidence and prevalence might also be addressed in a commercial partnership with another company with the requisite financial resources. Currently, the Company is in U.S. Phase I studies for two product candidates known as ZIO-101 and ZIO-201. The Company currently intends to continue with clinical development of ZIO-101 for advanced myeloma and ZIO-201 for advanced sarcoma.
 
The Company’s corporate office is located at 1180 Avenue of the Americas, 19th Floor, New York, NY 10036, with a telephone number of (646) 214-0700. The Company’s business and development operations are located in Charlestown, Massachusetts.
 
Cancer Overview
 
Cancer is a group of diseases characterized by either the runaway growth of cells or the failure of cells to die normally. Often, cancer cells spread to distant parts of the body, where they can form new tumors. Cancer can arise in any organ of the body and, according to the American Cancer Society, strikes one of every two American men and one of every three American women at some point in their lives.
 
It is reported that there are more than 100 different varieties of cancer divided into six major categories. Carcinomas, the most common type of cancer, originate in tissues that cover a surface or line a cavity of the body. Sarcomas begin in tissue that connects, supports or surrounds other tissues and organs. Lymphomas are cancers of the lymph system, the circulatory system that bathes and cleanses the body’s cells. Leukemias involve blood-forming tissues and blood cells. As their name indicates, brain tumors are cancers that begin in the brain, and skin cancers, including dangerous melanomas, originate in the skin. Cancers are considered metastatic if they spread via the blood or lymphatic system to other parts of the body to form secondary tumors.
 
Cancer is caused by a series of mutations, or alterations, in genes that control cells’ ability to grow and divide. Some mutations are inherited; others arise from environmental factors such as smoking or exposure to chemicals, radiation, or viruses that damage cells’ DNA. The mutations cause cells to divide relentlessly or lose their normal ability to die.
 
The cost of cancer to the healthcare system is significant. The National Institute of Health estimates that the overall cost of cancer in 2003 was $189.5 billion. This cost includes an estimate of $64.2 billion in direct medical expenses, $16.3 billion in indirect morbidity costs, and $109 billion in indirect mortality costs.
 
Cancer Treatments
 
Major treatments for cancer include surgery, radiotherapy, and chemotherapy. There are many different drugs that are used to treat cancer, including cytotoxics or antineoplastics, hormones, and biologics. There are also many experimental treatments under investigation including radiation sensitizers, vaccines, gene therapy and immunotoxins. The Company believes cancer treatment represents a significant unmet medical need.
 
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Radiotherapy. Also called radiation therapy, radiotherapy is the treatment of cancer and other diseases with ionizing radiation. Ionizing radiation deposits energy that injures or destroys cells in the area being treated - the target tissue - by damaging their genetic material, making it impossible for these cells to continue growing. Although radiation damages both cancer cells and normal cells, the latter are able to repair themselves and regain proper function. Radiotherapy may be used to treat localized solid tumors, such as cancers of the skin, tongue, larynx, brain, breast, or uterine cervix. It can also be used to treat leukemia and lymphoma.
 
Scientists are also looking for ways to increase the effectiveness of radiation therapy. Two types of investigational drugs are being studied for their effect on cells exposed to radiation. Radiosensitizers increase the damage done to tumor cells by radiation; and radioprotectors protect normal tissues from the effects of radiation.
 
Cytotoxics. Cytotoxics are anticancer drugs that destroy cancer cells by stopping them from multiplying. Healthy cells can also be harmed with the use of cytotoxics, especially those that divide quickly. Harm to healthy cells is what causes side effects. These cells usually repair themselves after chemotherapy. Chemotherapy can be used for different purposes which include curing cancer (when the patient remains free of evidence of cancer cells), controlling cancer (by preventing the cancer from spreading), and to relieving symptoms of cancer (such as pain, helping patients live more comfortably).
 
Cytotoxic agents act primarily on macromolecular synthesis, repair or activity, which affects the production or function of DNA, RNA or protein. Although there are many cytotoxic agents, there is a considerable amount of overlap in their mechanisms of action. As such, the choice of a particular agent or group of agents is generally not a consequence of a prior prediction of antitumor activity by the drug, but instead the result of empirical clinical trials.
 
Supportive Care. The treatment of a cancer may include the use of chemotherapy, radiation therapy, biologic response modifiers, surgery, or some combination of all of these or other therapeutic options. All of these treatment options are directed at killing or eradicating the cancer that exists in the patient’s body. Unfortunately, the delivery of many cancer therapies adversely affects the body’s normal organs. The undesired consequence of harming an organ not involved with cancer is referred to as a complication of treatment or a side effect.
 
Side effects, or complications, of treatment cause inconvenience, discomfort, and occasionally, may even be fatal. Additionally and perhaps more importantly, side effects may also prevent doctors from delivering the prescribed dose of therapy at the specific time and schedule of the treatment plan. Therefore, side effects not only cause discomfort, but may also limit a patient’s ability to achieve the best outcome from treatment by preventing the delivery of therapy at its optimal dose and time.
 
In addition to anemia, fatigue, hair-loss, reduction in blood platelets and white and red blood cells, and bone pain, one of the most common side effects of chemotherapy is nausea and vomiting. Several drugs have been developed to help prevent and control chemotherapy-induced nausea and vomiting, which have led to improvements in the management of symptoms associated with this cancer treatment, allowing for greater accuracy and consistency concerning the administration of cancer treatment. Nausea and vomiting induced by chemotherapy are treated by drugs such as 5HT3 receptor antagonists, like ondansetron, which is a selective blocking agent of the hormone serotonin.
 
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Product Candidates
 
ZIO-101
 
General. ZIO-101 is an organic arsenic compound covered by an issued U.S. patent and applications internationally. A form of commercially available inorganic arsenic (arsenic trioxide (Trisenox®) or ATO) has been approved for the treatment of acute promyelogenous leukemia (APL), a precancerous condition, and has been studied for the treatment of various cancers. Nevertheless, ATO has been shown to be toxic to the heart and liver, limiting its use as an anti-cancer agent. Inorganic arsenic has also been shown to cause cancer of the skin and lung in humans. The toxicity of arsenic generally is correlated to its accumulation in organs and tissues. The Company’s preclinical studies demonstrated that ZIO-101 (and organic arsenic in general) is considerably less toxic than inorganic arsenic, particularly with regard to heart toxicity.
 
In vitro testing of ZIO-101 using the National Cancer Institute’s human cancer cell panel detected activity against lung, colon, brain, melanoma, ovarian and kidney cancer. Moderate activity was detected against breast and prostate cancer.
 
In addition to solid tumors, in vitro testing in both the National Cancer Institute’s cancer cell panel and in vivo testing in a leukemia animal model demonstrated substantial activity against hematological cancers (cancers of the blood and blood-forming tissues) such as leukemia, lymphoma, myelodysplastic syndromes and multiple myeloma. Leukemia is a cancer that begins in blood-forming tissue such as the bone marrow and causes large numbers of blood cells to be produced and enter the bloodstream. Lymphomas are cancers that begin in cells of the immune system. Myelodysplastic syndromes, also called preleukemia or smoldering leukemia, are diseases in which the bone marrow does not function normally.
 
Clinical Lead Indications: Multiple Myeloma. Multiple myeloma, a common hematological malignancy, is among a group of plasma cell cancers associated with the overproduction of monoclonal immunoglobulin (M-protein). Primary treatment for multiple myeloma is systemic chemotherapy. Approximately 15-20% of patients who have the disease are resistant to aggressive primary treatment. Even with prompt institution of systemic treatment, the drug-sensitive phase of the disease usually lasts only two to three years for most patients before resistance appears (although in a small patient population sensitivity to systemic therapy can last for five to ten years). The median survival of patients with progressive or resistant disease is three to four years.
 
The standard of care for progressive or resistant multiple myeloma may be in transition. Recent clinical trials offer evidence supporting the use of thalidomides and proteosome inhibitors, either alone or in combination with other agents. Unfortunately, neither treatment is universally effective, each can be quite toxic, and all patients who receive them will likely develop progressive disease. As a result, the Company expects that the medical community will continue to embrace new agents that provide incremental benefit to patients without undue toxicity. The Company is hopeful that the novel mechanism of action of ZIO-101, combined with its anticipated safety profile, will encourage its use in the treatment of advanced myeloma and possibly a variety of other tumors. Currently, the Company expects that advanced myeloma will be the indication for which it is most likely to seek initial regulatory approval for ZIO-101.
 
Clinical Development Plan for ZIO-101. The Company has commenced two phase I clinical trials (hematological and solid tumor) at the University of Texas M.D. Anderson Cancer Center using ZIO-101 in refractory disease. Phase I testing is primarily focused on assessing drug safety; however, one patient in the solid tumor trial has evidenced a response without toxicity (as reported by the investigator). The starting dose in both phase I trials was about 14 times the labeled dose of inorganic arsenic. The dose has been escalated to the next level in one trial, and to date has been well tolerated.
 
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The goal of the phase I trials are to determine dose-limiting toxicity and maximum tolerated dose. In addition, assessments of pharmacokinetic data will be obtained along with any indication of efficacy. The Company expects to follow these phase I trials with a phase I/II trial in advanced myeloma. The Company currently anticipates reporting some phase I/II trial results in the first half of 2006. A second phase II trial in myeloma is under consideration for initiation in early 2006. It is expected that a pivotal trial in multiple myeloma would begin in early 2007.
 
The solid tumor trial is seeking to confirm data collected during pre-clinical studies that indicated activity in a variety of solid tumors. We have elected to conduct a separate phase I clinical trial for solid cancers based on our belief that the maximum tolerated dose of ZIO-101 in patients with solid cancers may be substantially higher than patients with blood cancers. While the current focus for product registration is myeloma, these phase I study results will be instructive for further development plans in solid tumors.
 
ZIO-201
 
General. ZIO-201, or isophosphoramide mustard (IPM), is a proprietary stabilized metabolite of ifosfamide that is also related to cyclophosphamide. A patent application for pharmaceutical composition has been filed. Cyclophosphamide and ifosfamide are alkylating agents. Cyclophosphamide is the most widely used alkylating agent in cancer therapy and is used to treat breast cancer and non-Hodgkin’s lymphoma. Ifosfamide has been shown to be effective in high dose by itself, or in combination in treating sarcoma and lymphoma. Although ifosfamide-based treatment generally represents the standard of care for sarcoma, it is not licensed for this indication by the U.S. Food and Drug Administration (FDA).
 
The Company’s pre-clinical studies have shown that, in animal and laboratory models, IPM evidences activity against leukemia and solid tumors. These studies also indicate that ZIO-201 has a better pharmacokinetic and safety profile than ifosfamide or cyclophosphamide, offering the possibility of safer and more efficacious therapy with ZIO-201.
 
Ifosfamide is metabolized to IPM. In addition to IPM, another metabolite of ifosfamide is acrolein, which is toxic to the kidneys and bladder. The presence of acrolein can mandate extensive in-hospital hydration and the administration of a protective agent called Mesna®, which is inconvenient and expensive. Chloroacetaldehyde is another metabolite of ifosfamide and is toxic to the central nervous system, causing “fuzzy brain” syndrome for which there is currently no protective measure. Similar toxicity concerns pertain to high-dose cyclophosphamide, which is widely used in bone marrow and blood cell transplantation. Because ZIO-201 is independently active—without acrolein or chloroacetaldehyde metabolites—the Company believes that the administration of ZIO-201 may avoid the toxicities of ifosfamide and cyclophosphamide without compromising efficacy.
 
In addition to anticipated lower toxicity, ZIO-201 may have other advantages over ifosfamide and cyclophosphamide. ZIO-201 likely cross-links DNA differently than ifosfamide or cyclophosphamide metabolites, resulting in a different activity profile. Moreover, in some instances ZIO-201 appears to show activity in ifosfamide- and/or cyclophosphamide-resistant cancer cells.
 
Potential Lead Indications for ZIO-201: Sarcomas. Sarcomas are cancers of the bone, cartilage, fat, muscle, blood vessels, or other connective or supportive tissue. Soft tissue sarcomas, the expected lead indication for ZIO-201, are relatively rare; there are 6,000 to 8,000 thousand new cases each year in adults in the United States. On the other hand, in children, soft tissue sarcomas account for approximately 10% of all childhood cancers. There are more than 50 histological or tissue types of soft tissue sarcomas. The prognosis for patients with adult soft tissue sarcomas depends on several factors, including the patient’s age, size of the primary tumor, histological grade, and stage of the tumor. Factors associated with a poorer prognosis include age greater than 60 years, tumors larger than five centimeters, and high-grade histology. While small, low-grade tumors are usually curable by surgery alone, higher-grade or larger sarcomas are associated with higher local treatment failure rates and increased metastatic potential. Ifosfamide-based chemotherapy is a frequent standard of care for the treatment of metastatic tumors. It may also used in the adjuvant setting for high-risk primary tumors.
 
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ZIO-201 may be a useful agent that, either alone or in combination, can deliver therapeutic activity with fewer to no side effects of the type that have been associated with ifosfamide. In the United States, ifosfamide is regularly included in combination regimens for the treatment of sarcomas, testicular cancers, head and neck cancer and some types of non-Hodgkin’s lymphomas. The Company believes that ZIO-201 may be able to replace ifosfamide in any or all of these combination protocols.
 
Clinical Development Plan for ZIO-201. A phase I clinical trial is being conducted at two centers with the objective of establishing maximum tolerated dose. The current dose level in this phase I trial is believed to be comparable to a relatively high dose of ifosfamide. The drug is being administered without Mesna®. Furthermore, one patient has evidence of stable disease. The Company intends to initiate a phase I/II trial in advanced sarcoma and expects early results in the first half of 2006. The Company is also planning to implement a high dose phase I study in sarcoma and is exploring a phase II study in pediatric sarcoma. These trials would support the design and implementation of a phase III registration study in early 2007.
 
Competition
 
The development and commercialization for new products to treat cancer is highly competitive, and there will be considerable competition from major pharmaceutical, biotechnology, and specialty cancer companies. Many of our competitors have substantially more resources than the Company, including both financial and technical. In addition, many of these companies have more experience than the Company in preclinical and clinical development, manufacturing, regulatory, and global commercialization. The Company is also competing with academic institutions, governmental agencies and private organizations that are conducting research in the field of cancer. Competition for highly qualified employees is intense.
 
There are a number of companies developing chemotherapies for cancer and in particular for multiple myeloma and sarcoma. Millennium Pharmaceuticals, Inc. and Celgene Corporation have marketed products to treat multiple myeloma, and many other product candidates are in clinical trials and preclinical research. There are a more limited number of competitors developing new approaches to treat sarcoma, Ariad Pharmaceuticals principal among them.
 
License Agreements and Intellectual Property
 
The Company’s goal is to obtain, maintain and enforce patent protection for our products, formulations, processes, methods and other proprietary technologies, to preserve our trade secrets, and to operate without infringing the proprietary rights of other parties, both in the United States and in other countries. Our policy is to actively seek the broadest possible intellectual property protection for our product candidates through a combination of contractual arrangements and patents, both in the United States and abroad.
 
Patent and Technology License Agreement — University of Texas M. D. Anderson Cancer Center and the Texas A&M University System. On August 24, 2004, the Company entered into a Patent and Technology License Agreement with The Board of Regents of the University of Texas System, acting on behalf of the University of Texas M. D. Anderson Cancer Center and the Texas A&M University System (collectively, the “Licensors”). Under this agreement, the Company was granted an exclusive, worldwide license to rights (including rights to U.S. and foreign patent and patent applications and related improvements and know-how) for the manufacture and commercialization of two classes of organic arsenicals (water- and lipid-based) for human and animal use. The class of water-based organic arsenicals includes ZIO-101.
 
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In October 2004, we received a notice of allowance for U.S. Patent Application No. 10/337969, entitled “S-dimethylarsino-thiosuccinic acid S-dimethylarsino-2-thiobenzoic acid S-(simethylarsino) glutathione as treatments for cancer.” The patent was granted on June 28, 2005. The patent application claims both therapeutic uses and pharmaceutical compositions containing a novel class of organic arsenicals, including ZIO-101, for the treatment of cancer.
 
As partial consideration for the license rights obtained by the Company, we paid the Licensors an upfront, nonrefundable $125,000 fee and issued 250,487 shares of our common stock to University of Texas M. D. Anderson Cancer Center and granted it an option to purchase an additional 50,222 shares of our common stock for approximately $0.002 per share (such share amounts and option exercise price have been adjusted to reflect to the Merger). The option will vest and become exercisable with respect to 50% of its shares upon completion of the dosing of the last patient for both the blood and solid tumor phase I trials for ZIO-101. Another 25% of the shares subject to the option will vest upon enrollment of the first patient in a multi-center pivotal clinical trial (i.e., a human clinical trial intended to provide the substantial evidence of efficacy necessary to support the filing of an approvable New Drug Application ("NDA") ) for ZIO-101, with the remaining 25% vesting upon the filing of an Investigational New Drug (“IND”) for ZIO-101. As additional consideration for the license, the Licensors are entitled to receive up to an aggregate of $4.85 million in cash payments, payable in varying amounts, upon the achievement of certain milestones, including a $100,000 that the Company paid upon the commencement of the phase I clinical trial for ZIO-101 in May 2005. The Licensors are entitled to receive royalty payments from sales of a licensed product (should such a product be approved for commercial sale), as well and a portion of any fees that we may receive from a sublicensee. Finally, the license agreement provides that the Company will enter into two separate sponsored research agreements with the Licensors, each of which will require that we make annual payments of $100,000 for no less than two years. The Company will have the exclusive right to all intellectual property rights resulting from such research pursuant to the terms of the agreements.
 
The agreement also contains other provisions customary and common in similar agreements within the industry, such the Company’s right to sublicense our rights under the agreement. Nevertheless, if the Company sublicenses its rights prior to the commencement of a pivotal clinical trial (i.e., a human clinical trial intended to provide the substantial evidence of efficacy necessary to support the filing of an approvable NDA), the Licensors will generally be entitled to receive a share of the payments it receives in exchange for the sublicense (subject to certain exceptions).
 
License Agreement with DEKK-TEC, Inc. On October 15, 2004, the Company entered into a license agreement with DEKK-TEC, Inc., pursuant to which the Company was granted an exclusive, worldwide license to the second of our lead product candidates, ZIO-201.
 
In consideration for the Company’s license rights, DEKK-TEC is entitled to receive cash payments in the aggregate amount of up to $3.90 million, which are payable in varying amounts upon the occurrence of certain milestone events. The majority of these milestone payments will be creditable against future royalty payments, as referenced below. We also issued DEKK-TEC an option to purchase up to 27,616 shares of our common stock for approximately $0.02 per share (such share amount and option exercise price have been adjusted to reflect to the Merger), which option vested with respect to 6,904 post-Merger shares upon the execution of the license agreement. The option will vest with respect to the remaining shares upon certain milestone events culminating with final FDA approval of the first NDA submitted by us (or by our sublicensee) for ZIO-201. Finally, DEKK-TEC also is entitled to receive royalty payments on the sales of ZIO-201 should it be approved for commercial sale. The license agreement also contains other provisions customary and common in similar agreements within the industry.
 
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Option Agreement with Southern Research Institute (“SRI”). On December 22, 2004, we entered into an Option Agreement with SRI, pursuant to which we were granted an exclusive option to obtain an exclusive license to SRI’s interest in certain intellectual property, including exclusive rights related to certain isophosphoramide mustard analogs. Also on December 22, 2004, we entered into a Research Agreement with SRI pursuant to which we agreed to spend a sum not to exceed $200,000 between the execution of the agreement and December 21, 2006, including a $25,000 payment that we made simultaneously with the execution of the agreement, to fund research and development work by SRI in the field of isophosphoramide mustard analogs. Under the terms of the option agreement, our exclusive right to exercise the option will expire 60 days after the termination or expiration of the SRI’s research and development work in the field of isophosphoramide mustard analogs, and the delivery of the certain required reports.
 
Other Intellectual Property Rights and Protection. The Company depends upon the skills, knowledge and experience of its scientific and technical personnel, as well as those of its advisors, consultants and other contractors, none of which is patentable. To help protect proprietary know-how, which is not patentable, and for inventions for which patents may be difficult to enforce, the Company currently relies, and in the future rely, on trade secret protection and confidentiality agreements to protect our interests. To this end, the Company generally requires employees, consultants, advisors and other contractors to enter into confidentiality agreements that prohibit the disclosure of confidential information and, where applicable, require disclosure and assignment to us of the ideas, developments, discoveries and inventions important to our business.
 
Governmental Regulation
 
The research, development, testing, manufacture, labeling, promotion, advertising, distribution, and marketing, among other things, of our products are extensively regulated by governmental authorities in the United States and other countries. In the United States, the FDA regulates drugs under the Federal Food, Drug, and Cosmetic Act, or the “FDCA,” and its implementing regulations. Failure to comply with the applicable U.S. requirements may subject us to administrative or judicial sanctions, such as FDA refusal to approve pending New Drug Applications, warning letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, and/or criminal prosecution.
 
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Drug Approval Process. None of our drugs may be marketed in the U.S. until the drug has received FDA approval. The steps required before a drug may be marketed in the U.S. include:
 
·  
Preclinical laboratory tests, animal studies, and formulation studies;
 
·  
Submission to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may begin;
 
·  
Adequate and well-controlled human clinical trials to establish the safety and efficacy of the drug for each indication;
 
·  
Submission to the FDA of an NDA;
 
·  
Satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the drug is produced to assess compliance with current good manufacturing practices, or “cGMPs”; and
 
·  
FDA review and approval of the NDA.
 
Preclinical tests include laboratory evaluation of product chemistry, toxicity, and formulation, as well as animal studies. The conduct of the preclinical tests and formulation of the compounds for testing must comply with federal regulations and requirements. The results of the preclinical tests, together with manufacturing information and analytical data, are submitted to the FDA as part of an IND, which must become effective before human clinical trials may begin. An IND will automatically become effective 30 days after receipt by the FDA, unless before that time the FDA raises concerns or questions about issues such as the conduct of the trials as outlined in the IND. In such a case, the IND sponsor and the FDA must resolve any outstanding FDA concerns or questions before clinical trials can proceed. The Company cannot be sure that submission of an IND will result in the FDA allowing clinical trials to begin.
 
Clinical trials involve the administration of the investigational drug to human subjects under the supervision of qualified investigators. Clinical trials are conducted under protocols detailing the objectives of the study, the parameters to be used in monitoring safety, and the effectiveness criteria to be evaluated. Each protocol must be submitted to the FDA as part of the IND.
 
Clinical trials typically are conducted in three sequential phases, but the phases may overlap. The study protocol and informed consent information for study subjects in clinical trials must also be approved by an Institutional Review Board for each institution where the trials will be conducted. Study subjects must sign an informed consent form before participating in a clinical trial. Phase I usually involves the initial introduction of the investigational drug into people to evaluate its short-term safety, dosage tolerance, metabolism, pharmacokinetics and pharmacologic actions, and, if possible, to gain an early indication of its effectiveness. Phase II usually involves trials in a limited patient population to (i) evaluate dosage tolerance and appropriate dosage; (ii) identify possible adverse effects and safety risks; and (iii) evaluate preliminarily the efficacy of the drug for specific indications. Phase III trials usually further evaluate clinical efficacy and test further for safety by using the drug in its final form in an expanded patient population. There can be no assurance that phase I, phase II, or phase III testing will be completed successfully within any specified period of time, if at all. Furthermore, a company or the FDA may suspend clinical trials at any time on various grounds, including a finding that the subjects or patients are being exposed to an unacceptable health risk.
 
The FDCA permits FDA and the IND sponsor to agree in writing on the design and size of clinical studies intended to form the primary basis of an effectiveness claim in an NDA application. This process is known as Special Protocol Assessment. These agreements may not be changed after the clinical studies begin, except in limited circumstances.
 
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Assuming successful completion of the required clinical testing, the results of the preclinical studies and of the clinical studies, together with other detailed information, including information on the manufacture and composition of the drug, are submitted to the FDA in the form of an NDA requesting approval to market the product for one or more indications. The testing and approval process requires substantial time, effort, and financial resources. The agencies review the application and may deem it to be inadequate to support the registration, and companies cannot be sure that any approval will be granted on a timely basis, if at all. The FDA may also refer the application to the appropriate advisory committee, typically a panel of clinicians, for review, evaluation and a recommendation as to whether the application should be approved. The FDA is not bound by the recommendations of the advisory committee.
 
The FDA has various programs, including fast track, priority review, and accelerated approval, that are intended to expedite or simplify the process for reviewing drugs, and/or provide for approval on the basis surrogate endpoints. Generally, drugs that may be eligible for one or more of these programs are those for serious or life-threatening conditions, those with the potential to address unmet medical needs, and those that provide meaningful benefit over existing treatments. A company cannot be sure that any of its drugs will qualify for any of these programs, or that, if a drug does qualify, that the review time will be reduced.
 
Section 505(b)(2) of the FDCA allows the FDA to approve a follow-on drug on the basis of data in the scientific literature or a prior FDA approval of an NDA for a related drug. This procedure potentially makes it easier for generic drug manufacturers to obtain rapid approval of new forms of drugs based on proprietary data of the original drug manufacturer.
 
Before approving an NDA, the FDA usually will inspect the facility or the facilities at which the drug is manufactured and will not approve the product unless cGMP compliance is satisfactory. If the FDA evaluates the NDA and the manufacturing facilities as acceptable, the FDA may issue an approval letter, or in some cases, an approvable letter followed by an approval letter. Both letters usually contain a number of conditions that must be met in order to secure final approval of the NDA. When and if those conditions have been met to the FDA’s satisfaction, the FDA will issue an approval letter. The approval letter authorizes commercial marketing of the drug for specific indications. As a condition of NDA approval, the FDA may require post-marketing testing and surveillance to monitor the drug’s safety or efficacy, or impose other conditions.
 
After approval, certain changes to the approved product, such as adding new indications, making certain manufacturing changes, or making certain additional labeling claims, are subject to further FDA review and approval. Before a company can market products for additional indications, it must obtain additional approvals from FDA. Obtaining approval for a new indication generally requires that additional clinical studies be conducted. A company cannot be sure that any additional approval for new indications for any product candidate will be approved on a timely basis, or at all.
 
Post-Approval Requirements. Often times, even after a drug has been approved by the FDA for sale, the FDA may require that certain post-approval requirements be satisfied, including the conduct of additional clinical studies. If such post-approval conditions are not satisfied, the FDA may withdraw its approval of the drug. In addition, holders of an approved NDA are required to: (i) report certain adverse reactions to the FDA, (ii) comply with certain requirements concerning advertising and promotional labeling for their products, and (iii) continue to have quality control and manufacturing procedures conform to cGMP after approval. The FDA periodically inspects the sponsor’s records related to safety reporting and/or manufacturing facilities; this latter effort includes assessment of compliance with cGMP. Accordingly, manufacturers must continue to expend time, money, and effort in the area of production and quality control to maintain cGMP compliance. We intend to use third party manufacturers to produce our products in clinical and commercial quantities, and future FDA inspections may identify compliance issues at the facilities of our contract manufacturers that may disrupt production or distribution, or require substantial resources to correct. In addition, discovery of problems with a product after approval may result in restrictions on a product, manufacturer, or holder of an approved NDA, including withdrawal of the product from the market.
 
10

Employees. As of the date of this current report, the Company had 11 employees, all of which are full-time employees. The Company intends to hire an additional 3 to 4 employees prior to the end of 2005.
 
Description of Property
 
The Company’s corporate office is located at 1180 Avenue of the Americas, 19th Floor, New York, NY 10036. The New York office space is subject to a five-year lease agreement that expires in June 2010. Under the terms of the lease, the Company leases approximately 2,580 square feet and is required to make monthly rental payments of approximately $10,100 until December 31, 2007, with such payment increasing to approximately $11,000 thereafter through the remainder of the term of the lease. The Company’s business and development operations are located as 197 Eighth Street, Suite 300, Charlestown, Massachusetts 02129. The Charlestown office space is subject to a five-year lease agreement that expires in October 2009. Under the terms of the lease, the Company leases approximately 2,800 square feet and is required to make monthly rental payments that range from $4,200 during the first year of the lease to $4,900 during the last year of the lease. The Company is presently intending to expand its commercial space in Charlestown, Massachusetts by approximately 1,000 square feet.
 
Legal Proceedings
 
The Company is not currently involved in any material legal proceedings.
 
Cautionary Note Regarding Forward-Looking Statements
 
This report contains certain statements that are “forward-looking statements” under Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, and includes, among other things, discussions of our business strategies, future operations and capital resources. Words such as, but not limited to, “may,”“likely,”“anticipate,”“expect” and “believes” indicate forward-looking statements.
 
Forward-looking statements are included in the section of this report entitled “Description of Business of ZIOPHARM Oncology, Inc.” Although we believe that the expectations reflected in such forward-looking statements are generally reasonable, we cannot assure you that such expectations will ultimately prove to be correct. Generally, these statements relate to our business plans and strategies, projected or anticipated benefits or other consequences of market conditions and opportunities, business plans or strategies, projections involving anticipated sales and revenues, expenses, projected future earnings and other aspects of operational results. All Phases of our operations are subject to a number of uncertainties, risks and other influences, most of which are outside our control, and any one or combination of which could materially and adversely affect the results of our operations, and also, could affect whether any such forward-looking statements contained herein ultimately prove to be accurate. Important factors that could cause actual results to differ materially from our current expectations are summarized in the section captioned “Risk Factors” immediately following.
 
11

Risk Factors
 
The purchase of shares of our common stock is very speculative and involves a very high degree of risk. An investment in the Company is suitable only for the persons who can afford the loss of their entire investment. Accordingly, investors should carefully consider the following risk factors, as well as other information set forth herein, in making an investment decision with respect to our securities.
 
We currently have no product revenues and will need to raise additional capital to operate our business. To date, we have generated no product revenues. Until and unless we receive approval from the U.S. Food and Drug Administration and/or other regulatory authorities for our product candidates, we cannot sell our drugs and will not have product revenues. Currently, our only product candidates are ZIO-101(organic arsenic) and ZIO-201 (isophosphoramide mustard), and they are not approved by the FDA for sale.
 
We will need to seek additional sources of financing which may not be available on favorable terms, if at all. Currently, we expect that we will have sufficient cash to fund our operations into the second quarter of 2006. However, changes may occur that would consume our existing capital prior to that time, including the progress of our research and development efforts, changes in governmental regulation and acquisitions of additional product candidates. If we do not succeed in raising additional funds on acceptable terms, we may be unable to complete planned preclinical and clinical trials or obtain approval of any product candidates from the FDA and other regulatory authorities. In addition, we could be forced to discontinue product development, reduce or forego sales and marketing efforts or forego attractive business opportunities. Any additional sources of financing will likely involve the issuance of our equity securities, which will have a dilutive effect on our existing stockholders.
 
We are not currently profitable and may never become profitable. We have a history of losses and expect to incur substantial losses and negative operating cash flow for the foreseeable future, and we may never achieve or maintain profitability. Even if we succeed in developing and commercializing one or more product candidates, we expect to incur substantial losses for the foreseeable future and may never become profitable. We expect also to continue to incur significant operating and capital expenditures and anticipate that our expenses will increase substantially in the foreseeable future as we:
 
·  
Continue to undertake preclinical development and clinical trials for product candidates;
 
·  
Scale up the formulation and manufacturing of our product candidates;
 
·  
Seek regulatory approvals for product candidates;
 
·  
Implement additional internal systems and infrastructure; and
 
·  
Hire additional personnel.
 
We also expect to experience negative cash flow for the foreseeable future as we fund our operating losses and capital expenditures. This may result in a negative impact on the value of our Common Stock.
 
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We have a limited operating history upon which to base an investment decision. Prior to the Merger, ZIOPHARM was a development-stage company that was incorporated in September 2003. To date, we have not demonstrated an ability to perform the functions necessary for the successful commercialization of any product candidates. The successful commercialization of any product candidates will require us to perform a variety of functions, including:
 
·  
Continuing to undertake preclinical development and clinical trials;
 
·  
Participating in regulatory approval processes;
 
·  
Formulating and manufacturing products; and
 
·  
Conducting sales and marketing activities.
 
Our operations have been limited to organizing and staffing our company, acquiring, developing and securing our proprietary product candidates, undertaking preclinical trials and clinical trials of our product candidates ZIO-101 and ZIO-201, and manufacturing ZIO-101 and ZIO- 201. These operations provide a limited basis for you to assess our ability to commercialize our product candidates and the advisability of investing in our securities.
 
We may not obtain the necessary U.S. or worldwide regulatory approvals to commercialize any product candidate. We may not be able to obtain the approvals necessary to commercialize our product candidates, ZIO-101 and ZIO-201, or any product candidate that we may acquire or develop in the future for commercial sale. We will need FDA approval to commercialize our product candidates in the U.S. and approvals from regulatory authorities in foreign jurisdictions equivalent to the FDA to commercialize our product candidates in those jurisdictions. In order to obtain FDA approval of any product candidate, we must submit to the FDA a New Drug Application, or “NDA,” demonstrating that the product candidate is safe for humans and effective for its intended use. This demonstration requires significant research and animal tests, which are referred to as pre-clinical studies, as well as human tests, which are referred to as clinical trials. Satisfaction of the FDA’s regulatory requirements typically takes many years, depending upon the type, complexity and novelty of the product candidate, and will require substantial resources for research, development and testing. We cannot predict whether our research, development, and clinical approaches will result in drugs that the FDA considers safe for humans and effective for their intended uses. The FDA has substantial discretion in the drug approval process and may require us to conduct additional pre-clinical and clinical testing or to perform post-marketing studies. The approval process may also be delayed by changes in government regulation, future legislation or administrative action or changes in FDA policy that occur prior to or during our regulatory review. Delays in obtaining regulatory approvals may:
 
·  
Delay commercialization of, and our ability to derive product revenues from, our product candidates;
 
·  
Impose costly procedures on us; and
 
·  
Diminish any competitive advantages that we may otherwise enjoy.
 
Even if we comply with all FDA requests, the FDA may ultimately reject one or more of our NDAs. We cannot be sure that we will ever obtain regulatory clearance for our product candidates, ZIO-101 and ZIO-201. Failure to obtain FDA approval of our product candidates will severely undermine our business by leaving us without a saleable product, and therefore without any potential revenue source, until another product candidate can be developed. There is no guarantee that we will ever be able to develop or acquire another product candidate.
 
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In foreign jurisdictions, we similarly must receive approval from applicable regulatory authorities before we can commercialize any drugs. Foreign regulatory approval processes generally include all of the risks associated with the FDA approval procedures described above.
 
Our product candidates are in early stages of clinical trials, and we cannot be certain when we will be able to file an NDA with the FDA. Our product candidates, ZIO-101 and ZIO-201, are in early stages of development and require extensive clinical testing. In April 2005 we initiated two ZIO-101 phase I clinical trials; one in hematological cancers and the other in solid tumors. A phase I trial for ZIO-201 in up to 25 patients has been initiated, in which 10 patients already have been treated with ZIO-201. Notwithstanding our current clinical trial plans for each of our existing product candidates, we may not be able to commence additional trials or see results from these trials within our anticipated timelines. As such, we cannot predict with any certainty if or when we might submit an NDA for regulatory approval of our product candidates or whether such an NDA will be accepted.
 
Clinical trials are very expensive, time-consuming and difficult to design and implement. Human clinical trials are very expensive and difficult to design and implement, in part because they are subject to rigorous regulatory requirements. The clinical trial process is also time consuming. We estimate that clinical trials of our product candidates will take at least several years to complete. Furthermore, failure can occur at any stage of the trials, and we could encounter problems that cause us to abandon or repeat clinical trials. The commencement and completion of clinical trials may be delayed by several factors, including:
 
·  
Unforeseen safety issues;
 
·  
Determination of dosing issues;
 
·  
Lack of effectiveness during clinical trials;
 
·  
Slower than expected rates of patient recruitment;
 
·  
Inability to monitor patients adequately during or after treatment; and
 
·  
Inability or unwillingness of medical investigators to follow our clinical protocols.
 
We are hopeful that we may be able to obtain “Fast Track” status from the FDA for one or more of our product candidates. Fast Track status means that the FDA will perform an expedited review of our data upon the completion of clinical trials, which will thereby decrease the amount of time it will take a product candidate that has achieved such designation to reach the commercial market. However, there is no guarantee that any of our product candidates will be granted Fast Track status by the FDA or that, even if such product candidate is granted such status, the product candidate’s clinical development and regulatory approval process will not be delayed or will be successful.
 
In addition, we or the FDA may suspend our clinical trials at any time if it appears that we are exposing participants to unacceptable health risks or if the FDA finds deficiencies in our IND submission or in the conduct of these trials. Therefore, we cannot predict with any certainty the schedule for future clinical trials.
 
The results of our clinical trials may not support our product candidate claims. Even if our clinical trials are completed as planned, we cannot be certain that their results will support approval of our product candidates. Success in pre-clinical testing and early clinical trials does not ensure that later clinical trials will be successful, and we cannot be sure that the results of later clinical trials will replicate the results of prior clinical trials and pre-clinical testing. The clinical trial process may fail to demonstrate that our product candidates are safe for humans and effective for indicated uses. This failure would cause us to abandon a product candidate and may delay development of other product candidates. Any delay in, or termination of, our clinical trials will delay the filing of our NDAs with the FDA and, ultimately, our ability to commercialize our product candidates and generate product revenues. In addition, our clinical trials involve small patient populations. Because of small sample size, the results of these clinical trials may not be indicative of future results.
 
14

Physicians and patients may not accept and use our drugs. Even if the FDA approves our product candidates, physicians and patients may not accept and use them. Acceptance and use of our products will depend upon a number of factors including:
 
·  
Perceptions by members of the health care community, including physicians, regarding the safety and effectiveness of our drugs;
 
·  
Cost-effectiveness of our products relative to competing products;
 
·  
Availability of reimbursement for our products from government or other healthcare payers; and
 
·  
Effectiveness of marketing and distribution efforts by us and our licensees and distributors, if any.
 
Because we expect sales of our current product candidates, if approved, to generate substantially all of our product revenues for the foreseeable future, the failure of a drug to find market acceptance would harm our business and could require us to seek additional financing in order to fund the development of future product candidates.
 
Our drug-development program materially depends upon third-party researchers who are outside our control. We materially rely upon independent investigators and collaborators, such as universities and medical institutions, to conduct our preclinical and clinical trials under agreements with us. These collaborators are not our employees and we cannot control the amount or timing of resources that they devote to our programs. These investigators may not assign as great a priority to our programs or pursue them as diligently as we would if we were undertaking such programs ourselves. If outside collaborators fail to devote sufficient time and resources to our drug development programs, or if their performance is substandard, the approval of our FDA applications, if any, and our introduction of new drugs, if any, will be delayed. These collaborators may also have relationships with other commercial entities, some of whom may compete with us. If our collaborators assist our competitors to our detriment, our competitive position would be harmed.
 
We rely exclusively on third parties to formulate and manufacture our product candidates. We do not have experience in drug formulation or manufacturing and do not intend to establish our own manufacturing facilities. We lack the resources and expertise to formulate or manufacture our own product candidates. We currently are contracting for the commercial scale manufacture of our product candidates. We intend to contract with one or more manufacturers to manufacture, supply, store and distribute drug supplies for our clinical trials. If a product candidate we develop or acquire in the future receives FDA approval, we will rely on one or more third-party contractors to manufacture our drugs. Our anticipated future reliance on a limited number of third-party manufacturers exposes us to the following risks:
 
15

 
·  
We may be unable to identify manufacturers on acceptable terms or at all because the number of potential manufacturers is limited and the FDA must approve any replacement contractor. This approval would require new testing and compliance inspections. In addition, a new manufacturer would have to be educated in, or develop substantially equivalent processes for, production of our products after receipt of FDA approval, if any.
 
·  
Our third-party manufacturers might be unable to formulate and manufacture our drugs in the volume and of the quality required to meet our clinical needs and commercial needs, if any.
 
·  
Our future contract manufacturers may not perform as agreed or may not remain in the contract manufacturing business for the time required to supply our clinical trials or to successfully produce, store and distribute our products.
 
·  
Drug manufacturers are subject to ongoing periodic unannounced inspection by the FDA, the DEA, and corresponding state agencies to ensure strict compliance with good manufacturing practices and other government regulations and corresponding foreign standards. We do not have control over third-party manufacturers’ compliance with these regulations and standards.
 
·  
If any third-party manufacturer makes improvements in the manufacturing process for our products, we may not own, or may have to share, the intellectual property rights to the innovation.
 
Each of these risks could delay our clinical trials, the approval, if any, of our product candidates by the FDA or the commercialization of our product candidates or result in higher costs or deprive us of potential product revenues.
 
We do not have experience selling, marketing or distributing products and no internal capability to do so. We currently have no marketing, sales or distribution capabilities. If and when we become reasonably certain that we will be able to commercialize our current or future products, we anticipate allocating resources to the marketing, sales and distribution of our proposed products in North America However, we cannot assure that we will be able to market, sell and distribute our products successfully. Our future success also may depend, in part, on our ability to enter into and maintain collaborative relationships for such capabilities, the collaborator’s strategic interest in the products under development and such collaborator’s ability to successfully market and sell any such products. Although we intend to pursue collaborative arrangements regarding the sale and marketing of our products, there can be no assurance that we will be able to establish or maintain our own sales operations or affect collaborative arrangements, or that if we are able to do so, our collaborators will have effective sales forces. There can also be no assurance that we will be able to establish or maintain relationships with third party collaborators or develop in-house sales and distribution capabilities. To the extent that we depend on third parties for marketing and distribution, any revenues we receive will depend upon the efforts of such third parties, and there can be no assurance that such efforts will be successful. In addition, there can also be no assurance that we will be able to market and sell our products in the United States or overseas.
 
If we cannot compete successfully for market share against other drug companies, we may not achieve sufficient product revenues and our business will suffer. The market for our product candidates, ZIO-101 and ZIO-201, is characterized by intense competition and rapid technological advances. If a product candidate receives FDA approval, it will compete with a number of existing and future drugs and therapies developed, manufactured and marketed by others. Existing or future competing products may provide greater therapeutic convenience or clinical or other benefits for a specific indication than our products, or may offer comparable performance at a lower cost. If our products fail to capture and maintain market share, we may not achieve sufficient product revenues and our business will suffer.
 
16

We will compete against fully integrated pharmaceutical companies and smaller companies that are collaborating with larger pharmaceutical companies, academic institutions, government agencies and other public and private research organizations. Many of these competitors have products already approved or in development. In addition, many of these competitors, either alone or together with their collaborative partners, operate larger research and development programs or have substantially greater financial resources than we do, as well as significantly greater experience in:
 
·  
Developing drugs;
 
·  
Undertaking pre-clinical testing and human clinical trials;
 
·  
Obtaining FDA and other regulatory approvals of drugs;
 
·  
Formulating and manufacturing drugs; and
 
·  
Launching, marketing and selling drugs.
 
If we fail to adequately protect or enforce our intellectual property rights or secure rights to patents of others, the value of our intellectual property rights would diminish. Our success, competitive position and future revenues will depend in part on our ability and the abilities of our licensors to obtain and maintain patent protection for our products, methods, processes and other technologies, to preserve our trade secrets, to prevent third parties from infringing on our proprietary rights and to operate without infringing the proprietary rights of third parties.
 
To date, we have exclusive rights to certain U.S. and foreign intellectual property. We anticipate filing additional patent applications both in the U.S. and in other countries, as appropriate. However, we cannot predict:
 
·  
The degree and range of protection any patents will afford us against competitors, including whether third parties will find ways to invalidate or otherwise circumvent our patents;
 
·  
If and when patents will issue;
 
·  
Whether or not others will obtain patents claiming aspects similar to those covered by our patents and patent applications; or
 
·  
Whether we will need to initiate litigation or administrative proceedings which may be costly whether we win or lose.
 
Our success also depends upon the skills, knowledge and experience of our scientific and technical personnel, our consultants and advisors as well as our licensors and contractors. To help protect our proprietary know-how and our inventions for which patents may be unobtainable or difficult to obtain, we rely on trade secret protection and confidentiality agreements. To this end, it is our policy generally to require our employees, consultants, advisors and contractors to enter into agreements which prohibit the disclosure of confidential information and, where applicable, require disclosure and assignment to us of the ideas, developments, discoveries and inventions important to our business. These agreements may not provide adequate protection for our trade secrets, know-how or other proprietary information in the event of any unauthorized use or disclosure or the lawful development by others of such information. If any of our trade secrets, know-how or other proprietary information is disclosed, the value of our trade secrets, know-how and other proprietary rights would be significantly impaired and our business and competitive position would suffer.
 
17

If we infringe the rights of third parties we could be prevented from selling products, forced to pay damages, and defend against litigation. If our products, methods, processes or other technologies infringe the proprietary rights of other parties, we could incur substantial costs and we may have to:
 
·  
Obtain licenses, which may not be available on commercially reasonable terms, if at all;
 
·  
Abandon an infringing drug candidate;
 
·  
Redesign our products or processes to avoid infringement;
 
·  
Stop using the subject matter claimed in the patents held by others;
 
·  
Pay damages; or
 
·  
Defend litigation or administrative proceedings which may be costly whether we win or lose, and which could result in a substantial diversion of our valuable management resources.
 
Our ability to generate product revenues will be diminished if our drugs sell for inadequate prices or patients are unable to obtain adequate levels of reimbursement. Our ability to commercialize our drugs, alone or with collaborators, will depend in part on the extent to which reimbursement will be available from:
 
·  
Government and health administration authorities;
 
·  
Private health maintenance organizations and health insurers; and
 
·  
Other healthcare payers.
 
Significant uncertainty exists as to the reimbursement status of newly approved healthcare products. Healthcare payers, including Medicare, are challenging the prices charged for medical products and services. Government and other healthcare payers increasingly attempt to contain healthcare costs by limiting both coverage and the level of reimbursement for drugs. Even if our product candidates are approved by the FDA, insurance coverage may not be available, and reimbursement levels may be inadequate, to cover our drugs. If government and other healthcare payers do not provide adequate coverage and reimbursement levels for our products, once approved, market acceptance of such products could be reduced.
 
We may not be able to successfully manage our growth. Our success will depend upon the expansion of our operations and the effective management of our growth, which will place a significant strain on our management and on our administrative, operational and financial resources. To manage this growth, we must expand our facilities, augment our operational, financial and management systems and hire and train additional qualified personnel. If we are unable to manage our growth effectively, our business may be harmed. 
 
18

Our business will subject us to the risk of liability claims associated with the use of hazardous materials and chemicals. Our contract research and development activities may involve the controlled use of hazardous materials and chemicals. Although we believe that our safety procedures for using, storing, handling and disposing of these materials comply with federal, state and local laws and regulations, we cannot completely eliminate the risk of accidental injury or contamination from these materials. In the event of such an accident, we could be held liable for any resulting damages and any liability could have a materially adverse effect on our business, financial condition and results of operations. In addition, the federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of hazardous or radioactive materials and waste products may require our contractors to incur substantial compliance costs that could materially adversely affect our business, financial condition and results of operations.
 
We rely on key executive officers and scientific and medical advisors, and their knowledge of our business and technical expertise would be difficult to replace. We are highly dependent on our principal scientific, regulatory and medical advisors. We do not have “key person” life insurance policies on any of our officers. The loss of the technical knowledge and management and industry expertise of any of our key personnel could result in delays in product development, loss of customers and sales and diversion of management resources, which could adversely affect our operating results.
 
If we are unable to hire additional qualified personnel, our ability to grow our business may be harmed. We will need to hire additional qualified personnel with expertise in pre-clinical testing, clinical research and testing, government regulation, formulation and manufacturing, as well as sales and marketing. We compete for qualified individuals with numerous biopharmaceutical companies, universities and other research institutions. Competition for such individuals is intense, and we cannot be certain that our search for such personnel will be successful. Attracting and retaining qualified personnel will be critical to our success.
 
We may incur substantial liabilities and may be required to limit commercialization of our products in response to product-liability lawsuits. The testing and marketing of medical products entail an inherent risk of product liability. If we cannot successfully defend ourselves against product-liability claims, we may incur substantial liabilities or be required to limit commercialization of our products. Our inability to obtain sufficient product-liability insurance at an acceptable cost to protect against potential product liability claims could prevent or inhibit the commercialization of pharmaceutical products we develop, alone or with collaborators. We currently carry clinical trial insurance and product-liability insurance.
 
There are certain interlocking relationships among us and certain affiliates of Paramount, which may present potential conflicts of interest. Lindsay A. Rosenwald, M.D., who may be deemed to beneficially own approximately 20.13% of our common stock, is Chairman and Chief Executive Officer of Paramount BioCapital, Inc., an investment banking firm that served as placement agent in connection with a private placement of ZIOPHARM’s Series A Convertible Preferred Stock that terminated in May 2005. Paramount also served as a finder in connection with the Company’s option agreement with Southern Research Institute. The Company paid fees and issued securities to Paramount or its designees in connection with these transactions and Paramount currently has a right of first refusal to act as the placement agent for the private sale of our securities until May 31, 2008. Dr. Michael Weiser and Timothy McInerney, each of whom is a member of the Company’s board of directors, are also full-time employees of Paramount. See “Certain Transactions and Relationships - ZIOPHARM Transactions and Relationship.”

19

Paramount, Dr. Rosenwald, Dr. Weiser, and Mr. McInerney are not obligated pursuant to any agreement or understanding with us to make any additional products or technologies available to us, nor can there be any assurance that any biomedical or pharmaceutical products or technologies identified in the future by such parties will be made available to us. In addition, certain of our current officers and directors, as well as officers or directors that may be hereafter appointed, may from time to time serve as officers or directors of other biopharmaceutical or biotechnology companies. There can be no assurance that such other companies will not have interests in conflict with our own.
 
Because we became public by means of a reverse merger, we may not be able to attract the attention of major brokerage firms. Additional risks may exist as a result of our becoming a public reporting company through a “reverse merger.” Security analysts of major brokerage firms may not provide coverage of the Company. Because we became public through a reverse merger, there is no incentive to brokerage firms to recommend the purchase of our common stock. No assurance can be given that brokerage firms will want to provide analyst coverage of our Company in the future.
 
We are subject to Sarbanes-Oxley and the reporting requirements of federal securities laws, which can be expensive. As a public reporting company, we are subject to the Sarbanes-Oxley Act of 2002, as well as the information and reporting requirements of the Securities Exchange Act of 1934, as amended, and other federal securities laws. The costs of compliance with the Sarbanes-Oxley Act and of preparing and filing annual and quarterly reports, proxy statements and other information with the SEC, and furnishing audited reports to stockholders, will cause our expenses to be higher than they would be if ZIOPHARM had remained privately held and did not consummate the Merger.
 
Our common stock trades only in an illiquid trading market. Trading of our common stock is conducted on the over-the-counter bulletin board. This has an adverse effect on the liquidity of our common stock, not only in terms of the number of shares that can be bought and sold at a given price, but also through delays in the timing of transactions and reduction in security analysts’ and the media’s coverage of our Company and its common stock. This may result in lower prices for our common stock than might otherwise be obtained and could also result in a larger spread between the bid and asked prices for our common stock.
 
There is not now, and there may not ever be an active market for shares of our common stock. In general, there has been very little trading activity in shares of the Company’s common stock. The small trading volume will likely make it difficult for our stockholders to sell their shares as and when they choose. Furthermore, small trading volumes generally depress market prices. As a result, you may not always be able to resell shares of our common stock publicly at the time and prices that you feel are fair or appropriate.
 
Because it is a “penny stock,” you may have difficulty selling shares of our common stock.  Our common stock is a “penny stock” and is therefore subject to the requirements of Rule 15g-9 under the Securities and Exchange Act of 1934. Under this rule, broker-dealers who sell penny stocks must provide purchasers of these stocks with a standardized risk- disclosure document prepared by the Securities and Exchange Commission. Under applicable regulations, our common stock will generally remain a “penny stock” until and for such time as its per-share price is $5.00 or more (as determined in accordance with SEC regulations), or until we meet certain net asset or revenue thresholds. These thresholds include the possession of net tangible assets (i.e., total assets less intangible assets and liabilities) in excess of $2,000,000 in the event we have been operating for at least three years or $5,000,000 in the event we have been operating for fewer than three years, and the recognition of average revenues equal to at least $6,000,000 for each of the last three years. We do not anticipate meeting any of the foregoing thresholds in the foreseeable future.
 
20

The penny stock rules severely limit the liquidity of securities in the secondary market, and many brokers choose not to participate in penny-stock transactions. As a result, there is generally less trading in penny stocks. If you become a holder of our common stock, you may not always be able to resell shares of our common stock publicly at the time and prices that you feel are fair or appropriate.
 
We have never paid dividends and do not intend to do so for the foreseeable future. We have never paid dividends on our capital stock and we do not anticipate that we will pay any dividends for the foreseeable future. Accordingly, any return on an investment in our Company will be realized, if at all, only when you sell shares of our common stock.
 
21

Management’s Discussion and Analysis or Plan of Operation
 
ZIOPHARM Oncology Inc. (the “Company”) is a development-stage company that is seeking to develop and commercialize a diverse, risk-sensitive portfolio of in-licensed cancer drugs that address unmet medical needs. The Company’s management and advisors are focused on licensing proprietary drug candidate families that are related to cancer therapeutics on the market where the application of new biological understanding and the Company’s drug development expertise will lead to a lower risk for clinical development failure while expediting clinical registration. The Company expects to commercialize its products on its own in North America but recognizes that promising clinical trial results in cancers with a high incidence and prevalence might also be addressed in a commercial partnership with another company with the requisite financial resources. Currently, the Company is in U.S. phase I studies for two product candidates known as ZIO-101 and ZIO-201. The Company currently intends to continue with clinical development of ZIO-101 for advanced multiple myeloma and ZIO-201 for advanced sarcoma.
 
The Company’s corporate office is located at 1180 Avenue of the Americas, 19th Floor, New York, NY 10036 with a telephone number of (646) 214-0700. The Company’s business and development operations are located in Charlestown, Massachusetts.
 
Plan of Operation
 
Our plan of operation for the twelve month period commencing on September 13, 2005, the date of this report, is to continue implementing our business strategy, including the clinical development of our two lead product candidates, ZIO-101 and ZIO-201. We also intend to expand our drug candidate portfolio by seeking additional drug candidates through in-licensing arrangements. We expect our principal expenditures during the next 12 months to include:
 
·
Fees and milestone payments required under the license agreements relating to our existing product candidates;
 
·
Clinical trial expenses, including the costs incurred with respect to the conduct of clinical trials in the United States for ZIO-101 and ZIO-201 and preclinical costs associated with back-up candidates ZIO-102 and ZIO-202;
 
·
Costs related to the scale-up and manufacture of ZIO-101 and ZIO-201;
 
·
Rent for our facilities; and
 
·
General corporate and working capital, including general and administrative expenses.
 
As part of our plan for additional employees, we anticipate hiring at least 3 to 4 additional full-time employees in medical, regulatory and administrative support. In addition, we intend to use senior advisors, consultants, clinical research organizations and third parties to perform certain aspects of product development, manufacturing, clinical and preclinical development, and regulatory and quality assurance functions.
 
At our current and desired pace of clinical development of our two product candidates, over the next 12 months we expect to spend approximately $4.6 million on clinical trials (including milestone payments that we expect to be triggered under the license agreements relating to our product candidates), approximately $3.7 million on manufacturing costs, $215,000 on facilities rent, and approximately $6.8 million on general corporate and working capital.
 
22

We believe we currently have sufficient capital to fund development and commercialization activities of ZIO-101 and ZIO-201 into the second quarter of 2006. Because our business does not generate any cash flow, however, we will need to raise additional capital to continue development of the product candidates beyond that time. We expect to raise such additional capital by either borrowing money or by selling shares of our capital stock. To the extent additional capital is not available when we need it, we may be forced to abandon our development and commercialization efforts, which would have a material adverse effect on the prospects of our business. Further, our assumptions relating the expected costs of development and commercialization and timeframe for completion are dependent on numerous factors other than available financing, including significant unforeseen delays in the clinical trial and regulatory approval process, which could be extremely costly. In addition, our estimates assume that we will be able to enroll a sufficient number of patients in each clinical trial.
 
Product Candidate Development and Clinical Trials
 
ZIO-101, organic arsenic, is being developed presently to treat advanced myeloma. As follow-on to the ongoing phase I trials, a phase I/II trial in advanced multiple myeloma is in the advanced planning stage. With the completion of this trial in 2006, the Company expects to initiate a registration trial in advanced multiple myeloma. The Company will continue to explore the use of ZIO-101 in solid tumors as well as a phase II trial in advanced multiple myeloma using a different dosing regimen. Preclinical development will continue with a back-up compound designated as ZIO-102. Additional compounds are being synthesized under our agreement with the University of Texas M.D. Anderson Cancer Center and the Texas A&M University System. Technology transfer and scale-up for the commercial manufacture of the active pharmaceutical ingredient, its lyophilization, and final product specification will continue through the period leading to the expected registration trial in early 2007.
 
ZIO-201, stabilized isophosphoramide mustard, is being developed presently to treat advanced sarcoma. As follow-on to the ongoing phase I trial, a phase I/II trial or a phase II trial in advanced sarcoma is in the advanced planning stage. With the completion of this trial in 2006, the Company expects to initiate a registration trial in advanced sarcoma in early 2007. The Company will explore the potential to test ZIO-201 in pediatric sarcoma in a phase II trial. Preclinical development will continue with back-up analogues, one of which we would expect to be designated ZIO-202. Technology transfer and scale-up for the commercial manufacture of the active pharmaceutical ingredient, its lyophilization, and final product specification will continue through the period leading to the expected registration trial in early 2007.
 
 Off-Balance Sheet Arrangements
 
The Company has no off-balance sheet arrangements.
 
23

Security Ownership of Certain Beneficial Owners and Management
 
The following table summarizes certain information regarding the beneficial ownership (as such term is defined in Rule 13d-3 under the Securities Exchange Act of 1934) of the Company’s outstanding common stock as of September 13, 2005 (after giving effect to the Merger) by (i) each person known by the Company to be the beneficial owner of more than 5% of the Company’s outstanding common stock, (ii) each director of the Company, (iii) each of the Company’s named executive officers (as defined in Item 402(a)(3) of Regulation S-B under the Securities Act of 1933), and (iv) all executive officers and directors as a group. Except as indicated in the footnotes below, the security and stockholders listed below possess sole voting and investment power with respect to their shares.  Except as otherwise indicated, the address of the security and stockholders listed below is 1180 Avenue of the Americas, 19th Floor, New York, NY 10036.
 
Name and Address of Beneficial Owner
 
Shares of
Common Stock
Beneficially Owned (#)(1)
 
Percentage of
Common Stock
Beneficially Owned (%)
Dr. Jonathan Lewis (2)
 
136,868
 
1.88%
Richard Bagley (3)
 
80,428
 
1.11%
Robert Peter Gale (4)
 
8,371
 
*
Murray Brennan
 
0
 
*
James Cannon
 
0
 
*
Hon. Wyche Fowler
 
0
 
*
Gary Fragin
 
0
 
*
Timothy McInerney (5)
 
79,972
 
1.11%
Michael Weiser (6)
 
119,011
 
1.65%
All executive officers and directors
as a group (7)
 
424,650
 
5.71%
Mibars, LLC
365 West End Avenue
New York, NY 10024
 
1,214,456
 
16.97%
Lindsay A. Rosenwald (8)
787 Seventh Avenue, 48th Floor
New York, NY 10019
 
1,498,087 (8)
 
20.13%
Atlas Equity I, Ltd.
181 W. Madison, Suite 3600
Chicago, IL 60602
 
695,797
 
9.72%
Lester E. Lipschutz
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103
 
463,864 (9)
 
6.48%
         

* Less than 1% 
       
 
(1)
Beneficial ownership is determined in accordance with SEC rules, beneficial ownership includes any shares as to which the security or stockholder has sole or shared voting power or investment power, and also any shares which the security or stockholder has the right to acquire within 60 days of the date hereof, whether through the exercise or conversion of any stock option, convertible security, warrant or other right. The indication herein that shares are beneficially owned is not an admission on the part of the security or stockholder that he, she or it is a direct or indirect beneficial owner of those shares.
 
24

 
(2)
Includes 136,868 shares issuable upon the exercise of stock options that are currently exercisable or will become exercisable within the next 60 days.
 
(3)
Includes 80,428 shares issuable upon the exercise of stock options that are currently exercisable or will become exercisable within the next 60 days.
 
(4)
Includes 8,371 shares issuable upon the exercise of stock options that are currently exercisable or will become exercisable within the next 60 days.
 
(5)
Includes 20,767 shares issuable upon the exercise of warrants that are currently exercisable or will become exercisable within the next 60 days.
 
(6)
Includes 35,566 shares issuable upon the exercise of warrants that are currently exercisable or will become exercisable within the next 60 days.
 
(7)
Includes 282,000 shares issuable upon the exercise of convertible securities that are currently exercisable or will become exercisable within the next 60 days.
 
(8)
Excludes 463,864 shares held by certain trusts for the benefit of Dr. Rosenwald and his family for which Dr. Rosenwald disclaims beneficial ownership. Includes 221,011 shares issuable upon the exercise of warrants granted to Dr. Rosenwald and 62,621 shares issuable upon the exercise of warrants granted to Paramount BioCapital Investments, LLC, of which Dr. Rosenwald is the managing member, both such warrants are currently exercisable or will become exercisable within the next 60 days. Also includes 737,777 shares that Dr. Rosenwald has the right to acquire from existing stockholders under certain circumstances pursuant to the terms of pledge agreements between Dr. Rosenwald and such stockholders.
 
(9)
Includes 463,864 shares held by separate trusts for the benefit of Dr. Rosenwald or his family with respect to which Mr. Lipschutz is either trustee or investment manager and has investment and voting power. Dr. Rosenwald disclaims beneficial ownership of these shares.
 
 
25

Management and Certain Security Holders
 
At the effective time of the Merger, the Company’s board of directors was reconstituted by the appointment of Jonathan Lewis, Richard Bagley, Murray Brennan, James Cannon, Senator Wyche Fowler, Jr., Gary S. Fragin, Timothy McInerney and Michael Weiser as directors (all of whom were directors of ZIOPHARM immediately prior to the Merger), and the resignations of David C. Olson and David Floor from their roles as directors of the Company. The Company’s executive management team was also reconstituted and David C. Olson resigned from his positions as the Company’s President, Treasurer and Secretary. The following table sets forth the name and position of each of the Company’s directors and executive officers after the Merger.
 
Name
 
Age
 
Positions
Jonathan Lewis, M.D., Ph.D. 
 
47
 
Director & Chief Executive Officer
Richard Bagley
 
62
 
Director, President, Chief Operating Officer & Treasurer
Robert Peter Gale, M.D., Ph.D, DSc. 
 
59
 
Chief Scientific Officer, Head of Research
Murray Brennan, M.D. 
 
65
 
Director
James Cannon 
 
67
 
Director
Senator Wyche Fowler, Jr., JD. 
 
64
 
Director
Gary S. Fragin 
 
59
 
Director
Timothy McInerney 
 
44
 
Director
Michael Weiser, M.D., Ph.D. 
 
43
 
Director

The biographies of the directors and executive officers listed above are set forth below, all of whom began serving the Company in their respective positions as of the effective time of the Merger:
 
Jonathan Lewis, 47, is our Chief Executive Officer and a director, and has served as Chief Executive Officer and a director of ZIOPHARM since January 2004. From July 1994 until June 2001, Dr. Lewis served as Professor of Surgery and Medicine at Memorial Sloan-Kettering Cancer Center and he served as Chief Medical Officer and Chairman of the Medical Board at Antigenics, Inc. from June 2000 until November 2003. He serves as a director on the Board of POPPA (the Police Organization Providing Peer Assistance) of the New York Police Department (NYPD).
 
Richard Bagley, 62, serves as our President, Chief Operating Officer and Treasurer and a director of the Company, and has served ZIOPHARM in those capacities since July 2004. Prior to that, he served as a consultant to ZIOPHARM while serving as a senior advisor to The University of Texas M.D. Anderson Cancer Center. Mr. Bagley served in several capacities at Squibb Corporation from 1985-1990, including as President of E. R. Squibb & Sons, U.S. in 1988 and 1989. He served as Director, Chief Executive Officer and President of ImmuLogic Pharmaceutical Corporation from 1990 to 1994, as Director, Chief Executive Officer and Chairman of ProScript, Inc. from 1994 to 1998, as Director, President and Chief Executive Officer of AltaRex Corp. from 1998 to May 2003, and thereafter as a part time consultant and advisor in life sciences until joining ZIOPHARM full time. Mr. Bagley initiated a career in pharmaceuticals in 1968 with Smith Kline and French Laboratories, leaving in 1985 after serving as President of the consumer products division.
 
Robert Peter Gale, 59, is our Chief Scientific Officer and Head of Research and has served ZIOPHARM in that capacity since January 2004. Dr. Gale is also on the medical staff of UCLA School of Medicine in the Department of Medicine, Division of Hematology and Oncology and is Visiting Professor of Hematology at Imperial College of Science, Technology and Medicine, Hammersmith Hospital, London. Dr. Gale served as Senior Vice President for Medical Affairs at Antigenics, Inc. from April 2001 until May 2002 and as a consultant to that company from May 2002 through May 2004.
 
26

Murray Brennan, 65, is a director of the Company and has served as a member of ZIOPHARM’s board of directors since December 22, 2004. Dr. Brennan has been Chairman of Memorial Sloan-Kettering Cancer Center’s Department of Surgery since 1985, and is a former Vice President of the American College of Surgeons, a position he held from 2004 to 2005. Dr. Brennan is also a member of the National Academy of Sciences. He served as director of the American Board of Surgery from 1984 to 1990, Chairman of the American College of Surgeons’ Commission on Cancer from 1992 to 1994, President of the Society of Surgical Oncology from 1995 to 1996, and President of the American Surgical Association from 2002 to 2003.
 
James Cannon, 67, is a director of the Company and has served as a member of ZIOPHARM’s board of directors since December 22, 2004. Mr. Cannon is Vice Chairman, Chief Financial Officer and a member of the board of directors of BBDO Worldwide. Mr. Cannon joined BBDO in 1967, was appointed Chief Financial Officer of the agency in 1984, and was elected to its board of directors in 1985. In 1986, Mr. Cannon was appointed Comptroller and a member of the board of directors of Omnicom, a company affiliated with BBDO Worldwide, and served in those capacities through May 2002. In 1987, Mr. Cannon also served as Director of Financial Operations of the Omnicom Group from 1987 to 1989, when he rejoined BBDO Worldwide as Executive Vice President and Chief Financial Officer. Mr. Cannon was appointed Vice Chairman of BBDO Worldwide in 1990.
 
Senator Wyche Fowler, Jr., 64, is a director of the Company and has served as a member of ZIOPHARM’s board of directors since December 22, 2004. Senator Fowler has been engaged in an international business and law practice since May 2001, and has served as chairman of the board of the Middle East Institute, a non-profit foundation in Washington, DC, since September 2001. Senator Fowler served as U.S. Senator from Georgia from January 1987 to January 1993, and had previously served in the U.S. House of Representatives from 1977 until his senatorial election. During his time in the U.S. Senate, Senator Fowler served as a member of the Senate Appropriations, Budget, Energy and Agriculture Committees. While in the U.S. House of Representatives, he was a member of the House Ways and Means and Foreign Affairs Committees, as well as the Select Committee on Intelligence. President Clinton appointed Senator Fowler as Ambassador to the Kingdom of Saudi Arabia in 1996, where he served through 2001. Senator Fowler is a member of the board of directors of Brandywine Realty Trust, a real estate investment trust traded on the New York Stock Exchange.
 
Gary S. Fragin, 59, is a director of the Company and has served as a member of ZIOPHARM’s board of directors since December 22, 2004. Mr. Fragin is currently managing partner of Osborn Partners, LP and managing partner of Fragin Asset Management, LP, positions. Mr. Fragin was the General Partner and Chief Administrative/Operating Officer of Steinhardt Organization, prior to which he was a partner, Director of Trading and member of the Management Committee and Executive Committee at Oppenheimer and Co.
 
Timothy McInerney, 44, is a director of the Company and has served on ZIOPHARM’s board of directors since July 20, 2005. Since 1992, Mr. McInerney has been a Managing Director of Paramount BioCapital, Inc. where he oversees the overall distribution of Paramount’s private equity product. Prior to 1992, Mr. McInerney was a research analyst focusing on the biotechnology industry at Ladenburg, Thalman & Co. Prior to that, Mr. McInerney held equity sales positions at Bear, Stearns & Co. and Shearson Lehman Brothers, Inc. Mr. McInerney also has worked in sales and marketing for Bristol-Myers Squibb.
 
27

Michael Weiser, 43, is a director of the Company and has served on ZIOPHARM’s board of directors since ZIOPHARM’s inception. Dr. Weiser is the Director of Research of Paramount BioCapital. In addition to serving on the boards of directors of several privately-held companies, Dr. Weiser currently serves on the board of directors of Manhattan Pharmaceuticals, Inc., VioQuest Pharmaceuticals, Inc., Hana BioSciences, Inc. and Chelsea Therapeutics, Inc., all publicly-traded biotechnology companies.
 
Audit Committee
 
Immediately following the Merger, the Company formed an audit committee of the board of directors. The current members of the audit committee are Mr. James Cannon, who serves as the committee’s Chairman, and Messrs. Fragin and Bagley. The audit committee assists the board of directors in fulfilling its responsibilities of ensuring that management is maintaining an adequate system of internal controls such that there is reasonable assurance that assets are safeguarded and that financial reports are properly prepared; that there is consistent application of generally accepted accounting principles; and that there is compliance with management’s policies and procedures. In performing these functions, the audit committee will meet periodically with the independent auditors and management to review their work and confirm that they are properly discharging their respective responsibilities. In addition, the audit committee recommends the independent auditors for appointment by the board of directors. Prior to the Merger, the Company did not have an audit committee. Two members of the audit committee, Messrs. Cannon and Fragin, are independent, as independence is defined in Rule 4200(a)(15) of the Nasdaq listing standards and Rule 10A-3 under the Securities Exchange Act of 1934.
 
The board of directors has determined that each of the audit committee members is able to read and understand fundamental financial statements. In addition, the board of directors has determined that at least one member of the audit committee, Mr. James Cannon, is an “audit committee financial expert” as that term is defined in Item 401(e)(2) of Regulation S-B promulgated under the Securities and Exchange Act of 1934. Mr. Cannon’s relevant experience includes his current service as the Chief Financial Officer of BBDO Worldwide, a position he has held for the past 20 years, and his past service as director of financial operations of the Omnicom Group.
 
28

Executive Compensation
 
Summary Compensation Table
 
The following table sets forth the cash and non-cash compensation awarded to or earned by (i) each individual serving as chief executive officer of ZIOPHARM during the fiscal year ended December 31, 2004; and (ii) each other individual that served as an executive officer of ZIOPHARM at the conclusion of the fiscal year ended December 31, 2004 and who received in excess of $100,000 in the form of salary and bonus during such fiscal year (collectively, the “named executives”).
 
 
  Annual Compensation
 
Long-Term
Compensation
Awards
 
Name and Principal Position
 
Year
 
Salary ($)
 
Bonus ($)
Other Annual Compensation ($)
Securities Underlying Options (#)
Dr. Jonathan Lewis,
2004
344,167
500,000
9,099
268,653
Chief Executive Officer (1) 
         
           
Richard Bagley,
2004
43,750
75,000
4,057
150,668
President, Chief Operating
         
Officer and Treasurer (2) 
         
           
Dr. Robert Peter Gale, 
2004 
239,583 
150,000 
2,543 
25,110 
Chief Scientific Officer, 
         
Head of Research (3) 
         
            

(1)
Dr. Lewis became the Chief Executive Officer of the Company effective as of the Merger. Dr. Lewis received a sign-on bonus of $250,000 paid on February 23, 2004 and a guaranteed bonus of $250,000 that was paid on April 22, 2005.
 
(2)
Mr. Bagley became the President, Chief Operating Officer and Treasurer of the Company effective as of the Merger. Mr. Bagley received a sign-on bonus of $50,000 on July 15, 2004 and was due $25,000, a portion of his guaranteed bonus, as of December 31, 2004.
 
(3)
Mr. Gale became the Company’s Chief Scientific Officer, Head of Research effective as of the Merger. Mr. Gale received a guaranteed bonus of $150,000 on April 16, 2005.
 
Stock Options
 
Upon the Merger, the Company assumed ZIOPHARM’s 2003 Stock Option Plan as the Company’s Stock Option Plan. This plan has 1,252,436 shares authorized for issuance, of which 847,469 shares are subject to options currently outstanding. Prior to the Merger, the Company had an Incentive Stock Option Plan of EasyWeb, Inc. under which 175,000 shares of common stock were reserved for issuance. That stock option plan was terminated effective as of the Merger.
 
29

Option Grants in Last Fiscal Year
 
The following table sets forth the information concerning individual grants of stock options to the named executives made during the fiscal year ended December 31, 2004 by ZIOPHARM. All share numbers and dollar amounts are set forth on a post-Merger basis.
 
Name
 
Number of Securities Underlying
Options
Granted (#)
 
Percent of Total Options
Granted to Employees In
Fiscal Year
 
Exercise of
Base Price
($/share)
 
Expiration
Date(s)
 
Dr. Jonathan Lewis (1)
   
25,674
   
5.2
%
$
0.08
   
1/8/14
 
Dr. Jonathan Lewis (1)
   
242,979
   
48.9
%
$
0.08
   
1/27/14
 
Richard Bagley (2)
   
150,668
   
30.4
%
$
1.70
   
7/1/14
 
Dr. Robert Peter Gale
   
2,567
   
0.5
%
$
0.44
 
 
1/15/14
 
Dr. Robert Peter Gale      22,543     4.5 $  0.44      1/27/14  
 

 
(1)
The number of securities underlying options is subject to an anti-dilution provision pursuant to which Dr. Lewis is entitled to purchase no less than 5% of the Company’s common stock until such time as the Company has raised $25 million in financing.
 
(2)
The number of securities underlying options is subject to an anti-dilution provision pursuant to which Mr. Bagley is entitled to purchase no less than 3% of the Company’s common stock until such time as the Company has raised $25 million in financing.
 
Aggregated Option Exercises and Fiscal Year-End Option Values
 
The following table sets forth the total amount of shares acquired by the named executives upon exercises of stock options during fiscal year 2004, the aggregate dollar value realized upon such exercise, the total number of securities underlying unexercised options held at the conclusion of fiscal year 2004 (separately identifying then-exercisable and unexercisable options), and the aggregate dollar value of in-the-money, unexercised options held at the conclusion of fiscal year 2004 (separately identifying then-exercisable and unexercisable options). All share numbers and dollar amounts are set forth on a post-Merger basis.
 
Name
 
Shares Acquired
on Exercise (#)
 
Value Realized ($)
 
Number of
Unexercised
Securities
Underlying
Options at FY-
End (#)
Exercisable /
Unexercisable
 
Value of
Unexercised In-
the-Money
Options at FY-
End ($)
Exercisable /
Unexercisable(1)
 
Dr. Jonathan Lewis
   
0
   
0
   
0 / 268,653
(1)
 
0 / 558,798
 
Richard Bagley
   
0
   
0
   
0 / 150,668
(2)
 
0 / 69,307
 
Dr. Robert Peter Gale
   
0
   
0
   
0 / 25,110
(3)
 
0 / 43,189
 
 
(1)
Value of unexercised in-the-money options on December 31, 2004 is based on a value of ZIOPHARM, Inc. stock equal to $2.16 per share, as determined by the ZIOPHARM, Inc. Board of Directors at such time. As of December 31, 2004, no trades of the Company’s common stock had been conducted on the Over-the-Counter Bulletin Board.
 
 
30

Employment and Change-in-Control Agreements
 
On December 9, 2004, the Company entered into an employment agreement with David C. Olson. Under the terms of the agreement, we agreed to pay Mr. Olson a one-time fee of $100,000 if and when we completed a merger, acquisition, or related transaction. In connection with the Merger, Mr. Olson agreed to reduce this amount to the extent that the unconsolidated liabilities of the Company immediately following the Merger exceeded $425,000. On December 10, 2004, the Company entered into a management consulting services agreement with David Floor. Under the terms of the agreement, we agreed to pay Mr. Floor a one-time fee of $10,000 plus expenses, upon the closing of any transaction leaving the Company with a positive business direction and available finances. In connection with the Merger, we paid Messrs. Olson and Floor $57,500 and $100,000, respectively, under the terms of their agreements with us. Each such agreement was terminated in its entirety in connection with the Merger.
 
On January 8, 2004, the Company entered into a three-year employment agreement with Dr. Jonathan Lewis. Under the agreement, Dr. Lewis receives an annual base salary of $350,000 and a guaranteed annual bonus of $250,000. In addition, Dr. Lewis is eligible to receive an annual discretionary bonus of up to 100% of his base salary, as determined by the Company’s board of directors. The Company also paid Dr. Lewis a one-time bonus of $250,000 upon execution of his employment agreement. Depending upon the events surrounding a possible termination of Dr. Lewis’ employment, he may continue to receive his base salary and, in certain circumstances, his guaranteed bonus for one year following such termination. In addition, the vesting of Dr. Lewis’ stock options may accelerate in whole or in part upon such termination. Dr. Lewis has agreed not to compete with ZIOPHARM during the term of the employment agreement and for a one-year period thereafter, provided that we continue to pay his base salary and guaranteed bonus for that one-year period.
 
Pursuant to the terms of his employment agreement, the Company has granted Dr. Lewis options to purchase up to 410,603 shares of common stock at $0.08 per share (adjusted to give effect to the Merger). The options vest in three equal annual installments, the first of which vested on January 8, 2005, with the remaining installments vesting on January 8, 2006 and January 8, 2007. The option is subject to anti-dilution protection from the issuance of equity securities in financing transactions to the extent that Dr. Lewis will maintain potential equity ownership of at least 5% of the Company until such time as the Company has received $25 million in gross proceeds from such transactions. The options are governed by the Company’s 2003 Stock Option Plan.
 
On July 21, 2004, the Company entered into a three-year employment agreement with Mr. Richard Bagley. Under the agreement, Mr. Bagley receives an annual base salary of $250,000 and a guaranteed annual bonus of $50,000. In addition, Mr. Bagley is eligible to receive an annual discretionary bonus, as determined by the Company’s board of directors. The Company also paid Mr. Bagley a one-time bonus of $50,000 upon execution of his employment agreement. Depending upon the events surrounding a possible termination of Mr. Bagley’s employment, he may continue to receive his base salary and, in certain circumstances, his guaranteed bonus for one year following such termination. In addition, the vesting of Mr. Bagley’s stock options may accelerate in whole or in part upon such termination. Mr. Bagley has agreed not to compete with the Company during the term of the employment agreement and for a one-year period thereafter, provided that we continue to pay his base salary for that one-year period.
 
Pursuant to the terms of his employment agreement, the Company granted Mr. Bagley options to purchase up to 241,282 shares common stock at $1.70 per share (adjusted to give effect to the Merger). The options vest in three equal annual installments, the first of which vested on July 1, 2005, with the remaining installments vesting on July 1, 2006 and July 1, 2007. The option is subject to certain anti-dilution protections from the issuance of equity securities in financing transactions so that Mr. Bagley will maintain potential equity ownership of at least 3% of the Company until such time as the Company has received $25 million in gross proceeds from such transactions. The options are governed by the Company’s 2003 Stock Option Plan.
 
31

On January 14, 2004, the Company entered into a three-year employment agreement with Dr. Robert Peter Gale. Under the agreement, Dr. Gale receives an annual base salary of $250,000 and a guaranteed annual bonus of $150,000. In addition, Dr. Gale is eligible to receive an annual discretionary bonus, as determined by the Company’s board of directors. Depending upon the events surrounding a termination of Dr. Gale’s employment, he may continue to receive his base salary and, in certain circumstances, his guaranteed bonus for one year following such termination. In addition, the vesting of Dr. Gale’s stock options may accelerate in whole or in part upon such termination. Dr. Gale has agreed not to compete with the Company during the term of the employment agreement and for one-year following the expiration of his employment agreement.
 
Pursuant to the terms of his employment agreement, the Company granted Dr. Gale options to purchase up to 25,110 shares of common stock at $0.44 per share, respectively (adjusted to give effect to the Merger). The options vest in three equal annual installments, the first of which vested on January 15, 2005, with the remaining installments vesting on January 15, 2006 and January 15, 2007. The options are governed by the Company’s 2003 Stock Option Plan.
 
Compensation of Directors
 
Prior to the Merger, our directors received no compensation pursuant to any standard arrangement for their services as directors. Nevertheless, during the year ended December 31, 2004, we issued Mr. David Floor 5,000 shares of our common stock (adjusted to reflect to the 1-for-40 share combination effected immediately prior to the Merger) in exchange for directors fees.
 
Effective as of the Merger, the Company’s Board of Directors schedules monthly telephonic board meetings and quarterly in-person meetings held at the Company’s principal corporate office. Each director receives quarterly compensation of $3,000 in arrears. The non-management members of the Board also receive stock options as granted from time to time and as recommended by the compensation committee.
 
32

Certain Transactions and Relationships
 
Pre-Merger Company Transactions and Relationships
 
Because of their management positions, organizational efforts and/or percentage share ownership in EasyWeb, Messrs. Olson and Zappa may be deemed to be “promoters” of the Company, as those terms are defined in the Securities Act of 1933 and the applicable Rules and Regulations under the Securities Act of 1933. Because of the above-described relationships, transactions between and among EasyWeb and Messrs. Olson and Zappa, such as the sale of our common stock to each of them as described herein, should not be considered to have occurred at arm's-length.
 
Common Stock Transactions.

During July 2005, the Company sold 333,333 shares of its common stock to David Floor for $10,000, or $.03 per share.

In August and December 2004, David Olson loaned us a total of $1,300 for working capital. During May 2005, Mr. Olson advanced us an additional $788. The loans carried no interest rate and were due on demand. On June 28, 2005, we issued Mr. Olson 69,600 shares of common stock as full repayment of the amounts stated above. The shares were valued at $.03 per share, or $2,088, based on contemporaneous common stock sales to unrelated third parties.

On May 13, 2004, the Company issued 400,000 shares of common stock to Summit Financial Relations, Inc. (“Summit”) valued at $10,000, at $.025 per share as repayment for expenses paid on behalf of the Company. The shares were valued based on contemporaneous sales to unrelated third party investors. David Olson, our President, Treasurer and one of our directors is also Summit’s President, director and sole stockholder. The shares were issued pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) of the Act for transactions by an issuer not involving a public offering.

During May 2004, the Company issued 200,000 shares of common stock to Thomas Olson, the brother of David Olson, in exchange for corporate governance services. The shares were valued based on contemporaneous sales to unrelated third party investors, at $.025 per share. The Company recorded stock-based compensation of $5,000 related to the transaction. The shares were issued pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) of the Act for transactions by an issuer not involving a public offering.
 
During May 2004, the Company issued 200,000 shares of common stock to David Floor in exchange for director fees. The shares were valued based on contemporaneous sales to unrelated third party investors, at $.025 per share. The Company recorded stock-based compensation of $5,000 related to the transaction. The shares were issued pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) of the Act for transactions by an issuer not involving a public offering.
 
At December 31, 2004, the Company owed Summit $12,268 for professional fees and other administrative expenses paid on our behalf. David Olson, our President, Treasurer and one of our directors, is also Summit’s President, director and sole shareholder. During the six months ended June 30, 2005, Summit paid an additional $1,007 in expenses on our behalf. On February 4, 2005, the Company repaid Summit $7,000 and on June 28, 2005 the Company issued Summit 209,180 shares of common stock as full repayment of all amounts stated above. The shares issued to Summit were valued at $.03 per share, or $6,275, based on contemporaneous common stock sales to unrelated third parties.
 
33

During January 2002, we sold 33,333 and 16,667 shares of our common stock to David Olson and Barbara Petrinsky, respectively, at $.03 per share (gross proceeds totaling $1,500). At the time of issuance, both Mr. Olson and Ms. Petrinsky were officers of EasyWeb. In addition to the 50,000 shares sold to Mr. Olson and Ms. Petrinsky, we sold 500,000 shares of our common stock to unrelated third parties for gross proceeds totaling $15,000, or $.03 per share. The shares were issued pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(2) of the Act for transactions by an issuer not involving a public offering.
 
Office Space and Administrative Support.
 
Summit has contributed the use of office space and administrative support (including reception, secretarial and bookkeeping services) to us for the years ended December 31, 2004 and 2003. David Olson, our President, Treasurer and one of our directors, is also the President, director and sole stockholder of Summit.
 
The office space and administrative support contributed by Summit has a fair market value of approximately $500 and $1,000 per month, respectively. We have recognized expenses for rent and administrative support based on fair market value. Any period in which the amount paid to Summit for office space and administrative support was below the fair market value, the remaining balance was considered contributed by Summit and recorded as a credit to additional paid-in capital in our financial statements. During the years ended December 31, 2004 and 2003, we did not pay Summit for office space and we paid Summit $173 and $510, respectively, for administrative support. Accordingly, Summit contributed the remaining fair values for the use of the office space and administrative support. Contributed office space totaled $6,000 and $6,000, and contributed administrative support totaled $11,827 and $11,490 for the years ended December 31, 2004 and 2003, respectively.
 
Related Party Liabilities.
 
In August and December 2004, Mr. Olson loaned us a total of $1,300 for working capital. The loans carried no interest rate and were due on demand.
 
At December 31, 2003, the Company owed Summit $18,111 for professional fees and other administrative expenses it paid on our behalf. During the year ended December 31, 2004, Summit paid expenses totaling $4,187 on our behalf. A portion of the May 13, 2004 issuance of 400,000 restricted common described above under “Certain Relationships and Related Transactions - Common Stock Transactions” was used to repay Summit for these fees. As of December 31, 2004, we owed Summit $12,298.
 
We owed Barbara Petrinsky, our former Secretary and Treasurer, $10,000 for the work she performed over the previous five years to keep our books and records, assist in all of our filings with regulatory authorities, states and the Internal Revenue Service, among others.

All of the above referenced liabilities were satisfied in their entirety immediately follwing the Merger.

Consulting Agreement with Summit Financial.
 
On December 10, 2004, we entered into a consulting services fee agreement whereby Summit provides certain services to us including, but not limited to consultation related to mergers and acquisitions, reorganizations and divestitures. Pursuant to the agreement, Summit has lent us funds and helped us raise funds at no extra cost. Under the terms of the agreement, we agreed to pay Summit a one-time fee of $120,000 on the date of closing of any transaction that leaves us with a positive business directive and available finances, non-detrimental to our survival. In connection with the Merger, Summit agreed to reduce this amount to the extent that the unconsolidated liabilities of the Company immediately following the Merger exceeded $425,000. Upon the Merger, the Company paid $106,697.90 to Summit and terminated the agreement in its entirety.
 
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Under the terms of the Merger Agreement, the consolidated EasyWeb entity will pay our identified liabilities that are then due. A portion of such liabilities will be payable to David Olson under his employment agreement and to Summit under its consulting services fee agreement. However, Mr. Olson and Summit have agreed to reduce the amount of the payments to which they are otherwise entitled to the extent that our unconsolidated liabilities immediately following the Merger exceed $425,000.
 
ZIOPHARM Transactions and Relationships
 
In connection with a private placement of its Series A Convertible Preferred Stock that terminated in May 2005, ZIOPHARM and Paramount BioCapital, Inc. (“Paramount”) entered into an introduction agreement in January 2005. Upon the Merger, we succeeded to ZIOPHARM’s rights and obligation under such agreement. Pursuant to the introduction agreement, ZIOPHARM agreed to compensate Paramount or its designees for their services through the payment of (a) cash commissions equal to 7% of the gross proceeds from the offering, and (b) warrants to acquire an aggregate of 837,956 share of ZIOPHARM’s Series A Convertible Preferred Stock a per share exercise price of $2.38. Upon the Merger, this warrant was exchanged for a warrant to purchase an aggregate of 419,772 shares of our common stock at a per share exercise price of $4.75. Cash commissions will also be payable by us if we sell additional of our securities, prior to May 31, 2006, to investors introduced to ZIOPHARM by the Paramount. Pursuant to the introduction agreement, Paramount has the right of first refusal to act as the placement agent for the private sale of our securities until May 31, 2008.

In connection with ZIOPHARM’s December 22, 2004 Option Agreement with Southern Research Institute (“SRI”), ZIOPHARM entered into an Finders Agreement dated December 23, 2004 with Paramount, pursuant to which ZIOPHARM agreed to compensate Paramount for services in connection with the ZIOPHARM’s introduction to SRI through the payment of (a) a cash fee of $60,000 and (b) a warrant to purchase 125,000 shares of ZIOPHARM’s common stock at a price of $2.38 per share. Upon the Merger, this warrant was exchanged for a warrant to purchase an aggregate of 62,621 shares of our common stock at a per share exercise price of $4.75.

Lindsay A. Rosenwald, M.D., who may be deemed to beneficially own approximately 20.13% of our common stock, is Chairman and Chief Executive Officer of Paramount and its affiliates. Dr. Michael Weiser and Timothy McInerney, each of whom is a member of ZIOPHARM’s Board of Directors, are also full-time employees of Paramount.
 
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Description of Securities
 
Our authorized capital stock consists of 280,000,000 shares of common stock, $.001 value per share. All shares of common stock have equal voting rights and are entitled to one vote per share on all matters to be voted upon by our stockholders. The shares of common stock have no preemptive, subscription, conversion or redemption rights and may be issued only as fully-paid and non-assessable shares. Cumulative voting in the election of directors is not permitted. In the event of our liquidation, each holder of our common stock is entitled to receive a proportionate share of our assets available for distribution to stockholders after the payment of liabilities. All shares of our common stock issued and outstanding are fully-paid and non-assessable.
 
Holders of our common stock are entitled to share pro rata in dividends and distributions with respect to the common stock when, as and if declared by our board of directors out of funds legally available therefor. We have not paid any dividends on our common stock and intend to retain earnings, if any, to finance the development and expansion of our business. Future dividend policy is subject to the discretion of our board of directors and will depend upon a number of factors, including future earnings, capital requirements and our financial condition.
 
The transfer agent and registrar for our common stock is American Stock Transfer and Trust, 6201 15th Avenue, Brooklyn, New York, 11219. As of the date of this report, we had 7,157,863 shares of common stock outstanding held by 305 holders of record. Our common stock is listed for trading on the over-the-counter bulletin board under the symbol “ESWB.OB.” Nevertheless, there has been no established public trading market for the common stock since our inception. As a result changing our corporate name to ZIOPHARM Oncology, Inc., we expect that our ticker symbol will change to be consistent with our new corporate name.
 
 
Recent Sales of Unregistered Securities
 
The following summarizes all sales of unregistered securities by ZIOPHARM since inception in September 2003.
 
On September 25, 2003, in connection with ZIOPHARM’s incorporation, ZIOPHARM issued 500,000 shares of common stock for aggregate consideration of $500,000. On October 7, 2003, ZIOPHARM issued 12,500 shares of common stock to a consultant in exchange for certain consulting services. On March 14, 2004, ZIOPHARM issued an additional 4,500,000 shares of common stock in exchange for aggregate consideration of $4,500,000. On August 31, 2004, ZIOPHARM issued 500,000 shares of common stock to the University of Texas M.D. Anderson Cancer Center pursuant to the terms of the license agreement dated August 24, 2004.
 
In connection with ZIOPHARM’s license agreements with the University of Texas M. D. Anderson Cancer Center and DEKK-TEC, Inc., ZIOPHARM issued warrants to such parties to acquire an aggregate of 155,375 shares of common stock.
 
In connection with ZIOPHARM’s December 22, 2004 Option Agreement with SRI, ZIOPHARM issued a warrant to purchase 125,000 shares of common stock to Paramount.
 
In connection with an offering of Series A Convertible Preferred Stock of ZIOPHARM that was completed on May 30, 2005, ZIOPHARM issued an aggregate of 8,379,564 shares of such Series A Convertible Preferred Stock in exchange for a purchase price per share equal to $2.16. ZIOPHARM issued to the placement agents in connection with the offering warrants to purchase up to an aggregate of 837,956 share of ZIOPHARM’s Series A Convertible Preferred Stock.
 
Since ZIOPHARM’s inception to the Merger, ZIOPHARM issued to directors, officers, employees and consultants options to purchase an aggregate of 1,626,797 shares of common stock at exercise prices ranging from $0.04 to $2.16 per share with a weighted average exercise price of $0.77 per share. The issuances of these options were deemed to be exempt from registration under the Securities Act by virtue of Rule 701 promulgated under Section 3(b) of the Securities Act as transactions pursuant to compensation benefits plans and contracts relating to compensation.

Except as noted above, the sales of the securities identified above were made pursuant to privately negotiated transactions that did not involve a public offering of securities and, accordingly, ZIOPHARM believes that these transactions were exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof and rules promulgated thereunder. Each of the above-referenced investors in ZIOPHARM’s stock represented to ZIOPHARM in connection with their investment that they were “accredited investors” (as defined by Rule 501 under the Securities Act) and were acquiring the shares for investment and not distribution, that they could bear the risks of the investment and could hold the securities for an indefinite period of time. The investors received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration or an available exemption from such registration. All of the foregoing securities are deemed restricted securities for purposes of the Securities Act.

The following summarizes the sales of unregistered securities by EasyWeb, Inc. (now known as ZIOPHARM, Oncology, Inc.) during the three years prior to and including the closing of the Merger.
 
In connection with the Merger, EasyWeb, Inc. issued an aggregate of 6,967,941 shares of its common stock to the former holders of ZIOPHARM capital stock, and other securities having the right to purchase approximately an additional 1,366,846 shares of EasyWeb’s common stock, all of which were unregistered. For these issuances, EasyWeb relied on the exemption from federal registration under Section 4(2) of the Securities Act of 1933. EasyWeb relied on this exemption based on the fact that there were approximately only 230 (excludes options and warrants) stockholders of ZIOPHARM who were recipients of such unregistered shares in connection with the Merger, all of whom, either alone or through a purchaser representative, had knowledge and experience in financial and business matters such that each was capable of evaluating the risks of the investment, and had access to information regarding ZIOPHARM, EasyWeb and the Merger transaction.

For other sales of unregistered securities made by EasyWeb during the three-year period prior to the Merger, please refer to EasyWeb’s quarterly reports on Form 10-QSB filed on November 13, 2002, May 13, 2003, August 14, 2003, October 30, 2003, May 10, 2004, August 23, 2004, November 15, 2004, May 13, 2005, and August 15, 2005 (amended); and EasyWeb’s registration statement on Form 10-SB/A filed on December 28, 2001.
 
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Indemnification of Directors and Officers
 
Pursuant to our articles of incorporation and bylaws, we may indemnify an officer or director who is made a party to any proceeding, because of his position as such, to the fullest extent authorized by Delaware General Corporation Law, as the same exists or may hereafter be amended. In certain cases, we may advance expenses incurred in defending any such proceeding.
 
To the extent that indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling our company pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. If a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of our company in the successful defense of any action, suit or proceeding) is asserted by any of our directors, officers or controlling persons in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of that issue.
 
Item 3.02. Unregistered Sales of Equity Securities.
 
As disclosed under Item 2.01 above, in connection with the Merger, the Company issued an aggregate of 6,967,941 shares of its common stock to the former holders of ZIOPHARM capital stock, and other securities having the right to purchase approximately an additional 1,366,846 shares of our common stock, all of which were unregistered. For these issuances, the Company relied on the exemption from federal registration under Section 4(2) of the Securities Act of 1933. The Company relied on this exemption based on the fact that there were approximately 230 stockholders of ZIOPHARM who were recipients of such unregistered shares in connection with the Merger, all of whom, either alone or through a purchaser representative, had knowledge and experience in financial and business matters such that each was capable of evaluating the risks of the investment, and had access to information regarding ZIOPHARM, the Company and the Merger transaction.
 
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Item 5.01. Changes in Control of Registrant.
 
The disclosures set forth in Item 2.01 above are hereby incorporated by reference into this Item 5.01.
 
Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
 
The disclosures set forth in Item 2.01 regarding the reconstitution of the Company’s board of directors, the resignation of the Company’s executive officers, and the appointment of new executive officers, are hereby incorporated by reference into this Item 5.02.
 
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
On September 13, 2005, the Company’s board of directors adopted bylaws applicable to the Company. Such bylaws are filed as Exhibit 3.3 to this report.
 
On September 14, 2005, the Company filed a Certificate of Ownership with the Secretary of State of the State of Delaware pursuant to which the Company’s wholly-owned subsidiary, ZIOPHARM, Inc., merged with and into the Company with the Company remaining as the surviving corporation to the merger. In connection with this merger, and as set forth in the Certificate of Ownership, the Company changed its corporate name to “ZIOPHARM Oncology, Inc.” The Certificate of Ownership is filed as Exhibit 3.2 to this report.
 
Item 9.01. Financial Statements and Exhibits.
 
(a) As a result of its acquisition of ZIOPHARM described in Item 2.01, the registrant is filing ZIOPHARM’s audited financial information as Exhibit 99.1 to this report.
 
(b) As a result of its acquisition of ZIOPHARM described in Item 2.01, the registrant is filing certain pro forma financial information as Exhibit 99.2 to this report.
 
(c) Exhibits.
 
Exhibit
 
Description
2.1
 
Agreement and Plan of Merger and Reorganization dated August 3, 2005, by and among EasyWeb, Inc., a Delaware corporation (the registrant), ZIO Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the registrant, and ZIOPHARM, Inc., a Delaware corporation (incorporated by reference to exhibit 10.1 to the registrant’s current report on Form 8-K filed on August 9, 2005).
     
3.1
 
Certificate of Merger dated September 13, 2005 relating to the merger of ZIO Acquisition Corp. with and into ZIOPHARM, Inc.
     
3.2
 
Certificate of Ownership of ZIOPHARM Oncology, Inc. dated as of September 14, 2005.
     
3.3
 
Bylaws of ZIOPHARM Oncology, Inc.
     
99.1
 
Audited financial statements of ZIOPHARM, Inc.
     
99.2    Pro forma unaudited combined financial statements. 
     
99.3
 
Press Release dated September 15, 2005.
 
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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.
 
     
 
EASYWEB, INC.:
(Registrant)
 
 
 
 
 
 
Date: September 19, 2005 By:   /s/ Jonathan Lewis
 
Jonathan Lewis, Chief Executive Officer
   
 
 
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EXHIBIT INDEX 
     
  3.1  Certificate of Merger dated September 13, 2005 relating to the merger of ZIO Acquisition Corp. with and into ZIOPHARM, Inc.  
     
  3.2  Certificate of Ownership of ZIOPHARM Oncology, Inc. dated as of September 14, 2005. 
     
  3.3  Bylaws of ZIOPHARM Oncology, Inc. 
     
  99.1 
Audited financial statements of ZIOPHARM, Inc.
      
  99.2 Pro forma unaudited combined financial statements
     
  99.3  Press Release dated September 15, 2005. 
 
 
40

 
CERTIFICATE OF MERGER
of
ZIO ACQUISITION CORP.
and
ZIOPHARM, INC.
 
In accordance with Section 251 of the General Corporation Law of the State of Delaware, ZIOPHARM, Inc. hereby certifies as follows:
 
FIRST: That the name and state of incorporation of each of the constituent corporations of the merger is as follows:
 
NAME
 
STATE OF INCORPORATION
     
ZIO Acquisition Corp
 
Delaware
ZIOPHARM, Inc.
 
Delaware
 
SECOND: That an Agreement and Plan of Merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of the State of Delaware.
 
THIRD: That the name of the surviving corporation of the merger is ZIOPHARM, Inc.
 
FOURTH: The certificate of incorporation of ZIOPHARM, Inc., as amended to date, will be the certificate of incorporation of the surviving corporation; provided, however, that such certificate of incorporation shall be amended and restated in its entirety read as set forth on Exhibit A to this Certificate of Merger
 
FIFTH: The executed Agreement and Plan of Merger is on file at an office of the surviving corporation, the address of which is:
 
1180 Avenue of the Americas, Suite 1920
New York, New York 10036
 
SIXTH: That a copy of the Agreement and Plan of Merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation.
 
The undersigned corporation has caused this certificate of merger to be signed on September 13, 2005.
 
     
  ZIOPHARM, INC.
 
 
 
 
 
 
  By:   /s/ Richard Bagley
 
Name: Richard Bagley
 
Title: President, Chief Operating Officer and Treasurer
 
 

 
Exhibit A
 
Certificate of Incorporation
of
ZIOPHARM, Inc.
 
 
FIRST:
The name of this corporation shall be ZIOPHARM, Inc.
 
SECOND:
Its registered office in the State of Delaware is to be located at: 3500 South Dupont Highway, Dover DE 19901, County of Kent and its registered agent at such address is: Blumberg Excelsior Corporate Services, Inc.
 
THIRD:
The purpose of the corporation is to engage in any lawful act or  activity.
 
FOURTH:
The total number of shares of stock which this corporation is  authorized to issue is: TWO HUNDRED (200) common shares with no  par value.
 
FIFTH: 
The name and address of the incorporator is as follows:
 
Justin T. Reed,
c/o Blumberg
 
Excelsior Corporate Services, Inc.
62 White Street
New York, NY 10013
 
SIXTH:
The Directors shall have power to make and to alter or amend the By-Laws; to fix the amount to be reserved as working capital, and to authorize and cause to be executed, mortgages and liens without limit as to the amount, upon the property and franchise of this corporation.
 
 
With the consent in writing, and pursuant to a majority vote of the holders of the capital stock issued and outstanding, the Directors shall have authority to disclose, in any manner, of the whole property of this corporation.
 
 
The By-Laws shall determine whether and to what extent the account and books of this corporation, or any of them, shall be open to the inspection of the stockholders; no stockholder shall have any right of inspecting any account, or book, or document of this corporation except as conferred by the law or the By-Laws, or by resolution of the stockholders. The stockholders and directors shall have power to hold their meetings and keep the books, documents and papers of the corporation outside of the State of Delaware, at such places as may be, from time to time, designated by the By-Laws or by resolution of the stockholders or directors, except as otherwise required by the laws of Delaware.
 
 

It is the intention that the objects, purposes and powers specified in the paragraph hereof shall, except where otherwise specified in said paragraph, be in no way limited or restricted by reference to or inference from the terms of any other clause or paragraph in this certificate of incorporation, but that the objects, purposes and powers specified in the paragraph and in each of the clauses, or paragraphs of this charter shall be regarded as independent objects, purposes and powers.
 
No director of this corporation shall be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty of the corporation or its stockholders (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit.
 

 

Exhibit 3.2
STATE OF DELAWARE
CERTIFICATE OF OWNERSHIP

SUBSIDIARY INTO PARENT
Section 253

CERTIFICATE OF OWNERSHIP
MERGING
ZIOPHARM, INC.
INTO
EASYWEB, INC.

(Pursuant to Section 253 of the General Corporation Law of Delaware)

EasyWeb, Inc., a corporation incorporated on the 16th day of May, 2005 (the “Corporation”), pursuant to the provisions of the General Corporation Law of the State of Delaware;

DOES HEREBY CERTIFY that the Corporation owns 100% of the capital stock of ZIOPHARM, Inc., a corporation incorporated on the 9th day September, 2003 (“ZIOPHARM”), pursuant to the provisions of the General Corporation Law of the State of Delaware and that the Corporation, by a resolution of its Board of Directors duly adopted at a meeting held on the 13th day of September, 2005, determined to and did merge into itself said ZIOPHARM, Inc., which resolution is in the following words to wit:

WHEREAS, pursuant to the terms of a Merger Agreement dated August 3, 2005, ZIO Acquisition Corp., formerly a Delaware corporation and wholly-owned subsidiary of the Corporation, has merged with and into ZIOPHARM, Inc., a Delaware corporation (“ZIOPHARM”), with ZIOPHARM remaining as a wholly-owned subsidiary of the Corporation;
 
WHEREAS, the Board desires to cause ZIOPHARM to merge with and into the Corporation (the “Merger”), with the Corporation remaining as the surviving corporation to the Merger;
 
WHEREAS, following the Merger, the Corporation shall succeed to all of the estate, property, rights, privileges and franchises of ZIOPHARM and shall assume all of ZIOPHARM’s liabilities and obligations; and
 
WHEREAS, pursuant to the Merger, and as permitted by Section 253 of the Delaware General Corporation Law, the name of Corporation shall be changed to “ZIOPHARM Oncology, Inc.”.
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that ZIOPHARM merge with and into the Corporation, with the Corporation remaining as the surviving corporation to the Merger;

 
 

 
RESOLVED FURTHER, that following the Merger, the Corporation succeed to all of the estate, property, rights, privileges and franchises of ZIOPHARM and assume all of ZIOPHARM’s liabilities and obligations;

RESOLVED FURTHER, pursuant to the Merger, and as permitted by Section 253 of the Delaware General Corporation Law, the Corporation relinquishes its corporate name and assumes in its place the name “ZIOPHARM Oncology, Inc.”; and
 
RESOLVED FURTHER, that the Corporation’s officers are hereby authorized and directed to prepare or cause to be prepared all necessary documents, agreements, instruments and certificates to effectuate the Merger, including without limitation a Certificate of Ownership to be filed with Secretary of State of the State of Delaware (the Certificate of Ownership); and to execute and deliver such documents, agreements, instruments and certificates, and to make such filings as they deem necessary or advisable to effectuate the Merger, including without limitation filing a Certificate of Ownership with the Secretary of State of the State of Delaware, and a certified copy thereof in the office of the Recorder of Deeds of New Castle County.

IN WITNESS WHEREOF, said parent corporation has caused this certificate to be signed by an authorized officer this 14th day of September, 2005.
 
     
   
 
 
 
 
 
 
    /s/ Richard Bagley
 
Richard Bagley, President,
Chief Operating Officer, Chief Financial Officer
and Secretary
   

BY-LAWS
 
of
 
ZIOPHARM ONCOLOGY, INC.
 
(A Delaware Corporation)
 
________________________
 
ARTICLE 1
DEFINITIONS
 
As used in these By-laws, unless the context otherwise requires, the term:
 
1.1  “Assistant Secretary” means an Assistant Secretary of the Corporation.
 
1.2  “Assistant Treasurer” means an Assistant Treasurer of the Corporation.
 
1.3  “Board” means the Board of Directors of the Corporation.
 
1.4  “By-laws” means the initial by-laws of the Corporation, as amended from time to time.
 
1.5  “Certificate of Incorporation” means the initial certificate of incorporation of the Corporation, as amended, supplemented or restated from time to time.
 
1.6  “Chairman” means the Chairman of the Board of Directors of the Corporation.
 
1.7  “Corporation” means ZIOPHARM Oncology, Inc.
 
1.8  “Directors” means directors of the Corporation.
 
1.9  “Entire Board” means all then authorized directors of the Corporation.
 
1.10  “General Corporation Law” means the General Corporation Law of the State of Delaware, as amended from time to time.
 
1.11  “Office of the Corporation” means the executive office of the Corporation, anything in Section 131 of the General Corporation Law to the contrary notwithstanding.
 
1.12  “President” means the President of the Corporation.
 
1.13  “Secretary” means the Secretary of the Corporation.
 
1.14  “Stockholders” means stockholders of the Corporation.
 
1.15  “Treasurer” means the Treasurer of the Corporation.
 

1.16  “Vice President” means a Vice President of the Corporation.
 
ARTICLE 2
STOCKHOLDERS
 
2.1  Place of Meetings. Every meeting of Stockholders may be held at such place, within or without the State of Delaware, as may be designated by resolution of the Board from time to time.
 
2.2  Annual Meeting. If required by applicable law, a meeting of Stockholders shall be held annually for the election of Directors at such date and time as may be designated by resolution of the Board from time to time. Any other business may be transacted at the annual meeting.
 
2.3  Special Meetings. Unless otherwise prescribed by applicable law, special meetings of Stockholders may be called at any time by the Board and may not be called by any other person or persons. Business transacted at any special meeting of Stockholders shall be limited to the purpose stated in the notice.
 
2.4  Fixing Record Date. For the purpose of (a) determining the Stockholders entitled (i) to notice of or to vote at any meeting of Stockholders or any adjournment thereof, (ii) unless otherwise provided in the Certificate of Incorporation, to express consent to corporate action in writing without a meeting or (iii) to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock; or (b) any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date was adopted by the Board and which record date, unless otherwise required by applicable law, shall not be (x) in the case of clause (a)(i) above, more than 60 nor less than 10 days before the date of such meeting, (y) in the case of clause (a)(ii) above, more than 10 days after the date upon which the resolution fixing the record date was adopted by the Board and (z) in the case of clause (a)(iii) or (b) above, more than 60 days prior to such action. If no such record date is fixed:
 
2.4.1  the record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
 
2.4.2  the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board adopts the resolution taking such prior action; and
 
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2.4.3  the record date for determining Stockholders for any purpose other than those specified in Sections 2.4.1 and 2.4.2 shall be at the close of business on the day on which the Board adopts the resolution relating thereto. When a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof unless the Board fixes a new record date for the adjourned meeting.
 
2.5  Notice of Meetings of Stockholders. Whenever under the provisions of applicable law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place ,if any, date and hour of the meeting ,the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by applicable law, the Certificate of Incorporation or these By-laws, notice of any meeting shall be given, not less than 10 nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, with postage prepaid, directed to the Stockholder at his or her address as it appears on the records of the Corporation. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. Any meeting of Stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the meeting as originally called. If, however, the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.
 
2.6  Waivers of Notice. Whenever the giving of any notice to Stockholders is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the person entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Stockholder at a meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Stockholders need be specified in any waiver of notice unless so required by applicable law, the Certificate of Incorporation or these By-laws.
 
2.7  List of Stockholders. The Secretary shall prepare and make, at least 10 days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, the Stockholder’s agent, or attorney, at the Stockholder’s expense, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation, or on a reasonably accessible electronic network as provided by applicable law. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for examination as provided by applicable law. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting for the election of Directors, they shall be ineligible for election to any office at such meeting. Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the stock ledger, the list of Stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of Stockholders.
 
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2.8  Quorum of Stockholders; Adjournment. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By-laws, at each meeting of Stockholders, the presence in person or by proxy of the holders of a majority in voting power of all outstanding shares of stock entitled to vote at the meeting of Stockholders, shall constitute a quorum for the transaction of any business at such meeting. In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
 
2.9  Voting; Proxies. Unless otherwise provided in the Certificate of Incorporation, every Stockholder entitled to vote at any meeting of Stockholders shall be entitled to one vote for each share of stock held by such Stockholder which has voting power upon the matter in question. At any meeting of Stockholders, all matters, except as otherwise provided by the Certificate of Incorporation, these By-laws, the rules and regulations of any stock exchange applicable to the Corporation, applicable law or pursuant to any rules or regulations applicable to the Corporation or its securities, shall be decided by the affirmative vote of a majority in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. At all meetings of Stockholders for the election of Directors, a plurality of the votes cast shall be sufficient to elect. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such Stockholder by proxy but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.
 
2.10  Voting Procedures and Inspectors of Election at Meetings of Stockholders. The Board, in advance of any meeting of Stockholders, may, and shall if required by applicable law, appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting may, and shall if required by applicable law, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall (a) ascertain the number of shares outstanding and the voting power of each, (b) determine the shares represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (e) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies or votes, or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by a Stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.
 
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2.11  Conduct of Meetings; Organization. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of Stockholders as it shall deem appropriate. Unless another officer is designated by the Board, at each meeting of Stockholders, the President, or in the absence of the President, the Chairman, or if there is no Chairman or if there be one and the Chairman is absent, a Vice President, and in case more than one Vice President shall be present, that Vice President designated by the Board (or in the absence of any such designation, the most senior Vice President, based on age, present), shall preside over the meeting. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person presiding over any meeting of Stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding officer at any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding officer should so determine, such person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary, or in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. In case none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting, respectively, shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board, and in case the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.
 
2.12  Order of Business. The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting.
 
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2.13  Written Consent of Stockholders Without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required by the General Corporation Law to be taken at any annual or special meeting of Stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered mail, return receipt requested) to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded. Every written consent shall bear the date of signature of each Stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.13, written consents signed by a sufficient number of holders to take action are delivered to the Corporation as aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those Stockholders who have not consented in writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.
 
ARTICLE 3
DIRECTORS
 
3.1  General Powers. Except as otherwise provided in the Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and regulations, not inconsistent with the Certificate of Incorporation or these By-laws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.
 
3.2  Number; Qualification; Term of Office. The Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board. Directors need not be Stockholders. Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal.
 
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3.3  Newly Created Directorships and Vacancies. Unless otherwise provided by applicable law or the Certificate of Incorporation, any newly created directorships resulting from an increase in the authorized number of Directors and vacancies occurring in the Board for any cause, may be filled by the affirmative votes of a majority of the remaining members of the Board, although less than a quorum, or by a sole remaining Director, or may be elected by a plurality of the votes cast. A Director so elected shall be elected to hold office until the expiration of the term of office of the Director whom he or she has replaced or until a successor is elected and qualified, or until the Director’s earlier death, resignation or removal.
 
3.4  Resignation. Any Director may resign at any time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the time therein specified, and, unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective.
 
3.5  Regular Meetings. Regular meetings of the Board may be held without notice at such times and at such places within or without the State of Delaware as may be determined from time to time by resolution of the Board.
 
3.6  Special Meetings. Special meetings of the Board may be held at such times and at such places within or without the State of Delaware whenever called by the Chairman, the President or the Secretary or by any two or more Directors then serving as Directors on at least 24 hours’ notice to each Director given by one of the means specified in Section 3.9 hereof other than by mail, or on at least three days’ notice if given by mail. Special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of any two or more of the Directors then serving as Directors.
 
3.7  Telephone Meetings. Directors or members of any committee designated by the Board may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting.
 
3.8  Adjourned Meetings. A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.9 hereof other than by mail, or at least three days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.
 
3.9  Notice Procedure. Subject to Sections 3.6 and 3.10 hereof, whenever, under applicable law, the Certificate of Incorporation or these By-laws, notice is required to be given to any Director, such notice shall be deemed given effectively if given in person or by telephone, by mail addressed to such Director at such Director’s address as it appears on the records of the Corporation, with postage thereon prepaid, or by telegram, telecopy or, if consented to by the Director to whom notice is given, by other means of electronic transmission.
 
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3.10  Waiver of Notice. Whenever the giving of any notice to Directors is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the Director entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Directors or a committee of Directors need be specified in any waiver of notice unless so required by applicable law, the Certificate of Incorporation or these By-laws.
 
3.11  Organization. At each meeting of the Board, the Chairman, or in the absence of the Chairman, the President, or in the absence of the President, a chairman chosen by a majority of the Directors present, shall preside. The Secretary shall act as secretary at each meeting of the Board. In case the Secretary shall be absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.
 
3.12  Quorum of Directors. The presence in person of a majority of the Entire Board shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board.
 
3.13  Action by Majority Vote. Except as otherwise expressly required by applicable law, the Certificate of Incorporation or these By-laws, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.
 
3.14  Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee.
 
ARTICLE 4
COMMITTEES OF THE BOARD
 
The Board may, by resolution, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board designating such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it. Unless otherwise specified in the resolution of the Board designating a committee, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article 3 of these By-laws.
 
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ARTICLE 5
OFFICERS
 
5.1  Positions. The officers of the Corporation shall be a President, a Secretary, a Treasurer and such other officers as the Board may elect, including a Chairman, one or more Vice Presidents and one or more Assistant Secretaries and Assistant Treasurers, who shall exercise such powers and perform such duties as shall be determined from time to time by resolution of the Board. If the Corporation does not have an officer serving as Secretary, the Treasurer shall perform the duties of the Secretary described herein. The Board may elect one or more Vice Presidents as Executive Vice Presidents and may use descriptive words or phrases to designate the standing, seniority or areas of special competence of the Vice Presidents elected or appointed by it. Any number of offices may be held by the same person unless the Certificate of Incorporation or these By-laws otherwise provide.
 
5.2  Election. The officers of the Corporation shall be elected by the Board at its annual meeting or at such other time or times as the Board shall determine.
 
5.3  Term of Office. Each officer of the Corporation shall hold office for the term for which he or she is elected and until such officer’s successor is elected and qualifies or until such officer’s earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified, and, unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer may be removed at any time, with or without cause by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board. The removal of an officer with or without cause shall be without prejudice to the officer’s contract rights, if any. The election or appointment of an officer shall not of itself create contract rights.
 
5.4  Fidelity Bonds. The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.
 
5.5  Chairman. The Chairman, if one shall have been appointed, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by resolution of the Board.
 
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5.6  President. Unless a separate Chief Executive Officer has been appointed by the Board, the President shall be the Chief Executive Officer of the Corporation and shall have general supervision over the business of the Corporation, subject, however, to the control of the Board and of any duly authorized committee of the Board. Except as otherwise provided in Section 2.11, the President shall preside at all meetings of the Stockholders and shall also preside at all meetings of the Board at which the Chairman (if there be one) is not present. The President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed and, in general, the President shall perform all duties incident to the office of President of a corporation and such other duties as may from time to time be assigned to the President by resolution of the Board.
 
5.7  Vice Presidents. At the request of the President, or, in the President’s absence, at the request of the Board, the Vice Presidents shall (in such order as may be designated by the Board, or, in the absence of any such designation, in order of seniority based on age) perform all of the duties of the President and, in so performing, shall have all the powers of, and be subject to all restrictions upon, the President. Any Vice President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in which the signing and execution thereof shall be expressly delegated by resolution of the Board or by these By-laws to some other officer or agent of the Corporation, or shall be required by applicable law otherwise to be signed or executed, and each Vice President shall perform such other duties as from time to time may be assigned to such Vice President by resolution of the Board or by the President.
 
5.8  Secretary. The Secretary shall attend all meetings of the Board and of the Stockholders and shall record all the proceedings of the meetings of the Board and of the Stockholders in a book to be kept for that purpose, and shall perform like duties for committees of the Board, when required. The Secretary shall give, or cause to be given, notice of all special meetings of the Board and of the Stockholders and shall perform such other duties as may be prescribed by the Board or by the President, under whose supervision the Secretary shall be. The Secretary shall have custody of the corporate seal of the Corporation, and the Secretary, or an Assistant Secretary, shall have authority to affix the same on any instrument requiring it, and when so affixed, the seal may be attested by the signature of the Secretary or by the signature of such Assistant Secretary. The Board may, by resolution, give general authority to any other officer to affix the seal of the Corporation and to attest the same by such officer’s signature. The Secretary or an Assistant Secretary may also attest all instruments signed by the President or any Vice President. The Secretary shall have charge of all the books, records and papers of the Corporation relating to its organization and management, shall see that the reports, statements and other documents required by applicable law are properly kept and filed and, in general, shall perform all duties incident to the office of Secretary of a corporation and such other duties as may from time to time be assigned to the Secretary by resolution of the Board or by the President.
 
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5.9  Treasurer. The Treasurer, who may also be the Chief Financial Officer, shall have charge and custody of, and be responsible for, all funds, securities and notes of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable effects in the name and to the credit of the Corporation in such depositaries as may be designated by the Board; against proper vouchers, cause such funds to be disbursed by checks or drafts on the authorized depositaries of the Corporation signed in such manner as shall be determined by the Board and be responsible for the accuracy of the amounts of all moneys so disbursed; regularly enter or cause to be entered in books or other records maintained for the purpose full and adequate account of all moneys received or paid for the account of the Corporation; have the right to require from time to time reports or statements giving such information as the Treasurer may desire with respect to any and all financial transactions of the Corporation from the officers or agents transacting the same; render to the President or the Board, whenever the President or the Board shall require the Treasurer so to do, an account of the financial condition of the Corporation and of all financial transactions of the Corporation; disburse the funds of the Corporation as ordered by the Board; and, in general, perform all duties incident to the office of Treasurer of a corporation and such other duties as may from time to time be assigned to the Treasurer by resolution of the Board or by the President.
 
5.10  Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by the Treasurer, respectively, or by resolution of the Board or by the President.
 
ARTICLE 6
INDEMNIFICATION
 
6.1  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 6.3, 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.  
 
6.2  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 6 or otherwise.
 
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6.3  Claims. If a claim for indemnification or advancement of expenses under this Article 6 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.
 
6.4  Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article 6 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.
 
6.5  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.
 
6.6  Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article 6 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.
 
6.7  Other Indemnification and Prepayment of Expenses. This Article 6 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.
 
ARTICLE 7
GENERAL PROVISIONS
 
7.1  Certificates Representing Shares. Shares of the Corporation's stock may be certificated or uncertificated, as provided under Delaware law. Every holder of stock represented by certificates, and upon request every holder of uncertificated shares, shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman, if any, or the President or a Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by such Stockholder in the Corporation. Any or all of the signatures upon a certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
 
7.2  Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.
 
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7.3  Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
 
7.4  Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.
 
7.5  Seal. The Board may provide for a corporate seal, in which case such corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
 
7.6  Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board and may be changed by the Board.
 
7.7  Amendments. These By-laws may be altered, amended or repealed and new By-laws may be adopted by the Board, but the Stockholders may make additional By-laws and may alter and repeal any By-laws whether adopted by them or otherwise.
 
 
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Unassociated Document
ZIOPHARM, Inc.
(A Development Stage Enterprise)


Financial Statements



Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004
 
 

 
 

ZIOPHARM, Inc.
(A Development Stage Enterprise)

FINANCIAL STATEMENTS
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004


 

 
ZIOPHARM, Inc.
(A Development Stage Enterprise)

FINANCIAL STATEMENTS
Year Ended December 31, 2004 and
 For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004



C O N T E N T S
   
 
Page 
   
Report of Independent Registered Public Accounting Firm
1
     
Financial Statements:
 
     
 
Balance Sheets
2
     
 
Statements of Operations
3
     
 
Statements of Changes in Stockholders’ Equity (Deficit)
4
     
 
Statements of Cash Flows
5-6
     
 
Notes to Financial Statements
7-20
 

 
 
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 
To the Board of Directors and Stockholders of
ZIOPHARM, Inc.
Charlestown, Massachusetts


We have audited the accompanying balance sheets of ZIOPHARM, Inc. (a development stage enterprise) as of December 31, 2004 and 2003, and the related statements of operations, changes in stockholders’ equity (deficit), and cash flows for the year ended December 31, 2004 and the periods from inception (September 9, 2003) through December 31, 2003 and 2004. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of ZIOPHARM, Inc. as of December 31, 2004, and the results of its operations and its cash flows for the year ended December 31, 2004 and for the periods from inception (September 9, 2003) through December 31, 2003 and 2004, in conformity with accounting principles generally accepted in the United States of America.
 

 
Boston, Massachusetts
August 5, 2005
 

 
   
Page 2
     
ZIOPHARM, Inc.
   
(A Development Stage Enterprise)
   
Balance Sheets
   
December 31, 2004 and 2003
   
 
   
 
           
   
2004
 
2003
 
ASSETS
         
Current assets:
         
Cash and cash equivalents
 
$
1,026,656
 
$
402,363
 
Prepaid expenses and other current assets
   
117,571
   
 
Total current assets
   
1,144,227
   
402,363
 
               
Property and equipment, net
   
240,733
   
 
               
Deposits
   
60,046
   
 
   
$
1,445,006
 
$
402,363
 
               
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
             
Current liabilities:
             
Accounts payable
 
$
709,947
 
$
62,499
 
Accrued expenses
   
879,376
   
 
Total current liabilities
   
1,589,323
   
62,499
 
               
Commitments and contingencies
             
               
Stockholders' equity (deficit):
             
Series A convertible preferred stock,
             
$.001 par value; 20,000,000 shares authorized; no
             
shares issued and outstanding at December 31, 2004
             
and December 31, 2003, respectively
   
   
 
Common stock, $.001 par value; 30,000,000 shares authorized;
             
5,512,500 and 500,000 shares issued and outstanding
             
at December 31, 2004 and December 31, 2003, respectively
   
5,513
   
500
 
Additional paid-in capital
   
5,697,603
   
499,500
 
Deficit accumulated during the development stage
   
(5,847,433
)
 
(160,136
)
Total stockholders' equity (deficit)
   
(144,317
)
 
339,864
 
               
   
$
1,445,006
 
$
402,363
 
               
 
The accompanying notes are an integral part of these financial statements.

 
     
Page 3
       
ZIOPHARM, Inc.
     
(A Development Stage Enterprise)
     
Statements of Operations
     
Year Ended December 31, 2004 and
     
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004
     
       
 
               
       
For the Period
 
For the Period
 
       
from Inception
 
from Inception
 
       
(September 9, 2003)
 
(September 9, 2003)
 
   
Year Ended
 
through
 
through
 
   
December 31,
 
December 31,
 
December 31,
 
   
2004
 
2003
 
2004
 
Research contract revenue
 
$
 
$
 
$
 
                     
Operating expenses:
                   
Research and development, including
                   
costs of research contracts
   
2,126,607
   
   
2,126,607
 
General and administrative
   
3,581,959
   
160,634
   
3,742,593
 
Total operating expenses
   
5,708,566
   
160,634
   
5,869,200
 
                     
Loss from operations
   
(5,708,566
)
 
(160,634
)
 
(5,869,200
)
                     
Interest income
   
21,269
   
498
   
21,767
 
                     
Net loss
 
$
(5,687,297
)
$
(160,136
)
$
(5,847,433
)
                     
Basic and diluted net loss per share
 
$
(1.19
)
$
(1.02
)
     
                     
Weighted average common shares outstanding
                   
used to compute basic and diluted net loss per share
   
4,794,692
   
156,336
       
 
 
The accompanying notes are an integral part of these financial statements.

 
         
Page 4
           
ZIOPHARM, Inc.
         
(A Development Stage Enterprise)
         
Statements of Changes in Stockholders' Equity (Deficit)
         
Year Ended December 31, 2004 and
         
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004
         
           
 
 
                               
                       
Deficit
     
   
Series A
             
Accumulated
 
Total
 
   
Convertible
         
Additional
 
during the
 
Stockholders'
 
   
Preferred Stock
 
Common Stock
 
Paid-in
 
Development
 
Equity
 
   
Shares
 
Amount
 
Shares
 
Amount
 
Capital
 
Stage
 
(Deficit)
 
                               
Stockholders' contribution, September 9, 2003
   
 
$
   
500,000
 
$
500
 
$
499,500
 
$
 
$
500,000
 
Net loss
   
   
   
   
   
   
(160,136
)
 
(160,136
)
Balance at December 31, 2003
   
   
   
500,000
   
500
   
499,500
   
(160,136
)
 
339,864
 
Issuance of common stock
   
   
   
4,500,000
   
4,500
   
4,495,500
   
   
4,500,000
 
Issuance of common stock for services
   
   
   
512,500
   
513
   
438,326
   
   
438,839
 
Fair value of options/warrants issued for nonemployee services
   
   
   
   
   
264,277
   
   
264,277
 
Net loss
   
   
   
   
   
   
(5,687,297
)
 
(5,687,297
)
                                             
Balance at December 31, 2004
   
 
$
   
5,512,500
 
$
5,513
 
$
5,697,603
 
$
(5,847,433
)
$
(144,317
)
 
 
The accompanying notes are an integral part of these financial statements.

 
     
Page 5
       
ZIOPHARM, Inc.
     
(A Development Stage Enterprise)
     
Statements of Cash Flows
     
Year Ended December 31, 2004 and
     
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004
     
       
 
               
       
For the Period
 
For the Period
 
       
from Inception
 
from Inception
 
       
(September 9, 2003)
 
(September 9, 2003)
 
   
Year Ended
 
through
 
through
 
   
December 31,
 
December 31,
 
December 31,
 
   
2004
 
2003
 
2004
 
Cash flows from operating activities:
             
Net loss
 
$
(5,687,297
)
$
(160,136
)
$
(5,847,433
)
Adjustments to reconcile net loss to net cash
                   
used in operating activities:
                   
Depreciation and amortization
   
33,953
   
   
33,953
 
Stock-based compensation
   
703,116
   
   
703,116
 
Change in operating assets and liabilities:
                   
(Increase) in:
                   
Prepaid expenses and other current assets
   
(117,571
)
 
   
(117,571
)
Increase (decrease) in:
                   
Accounts payable
   
647,448
   
62,499
   
709,947
 
Accrued expenses
   
879,376
   
   
879,376
 
Deposits
   
(60,046
)
 
   
(60,046
)
Net cash used in operating activates
   
(3,601,021
)
 
(97,637
)
 
(3,698,658
)
                     
Cash flows from investing activities:
                   
Purchases of property and equipment
   
(274,686
)
 
   
(274,686
)
Net cash used in investing activities
   
(274,686
)
 
   
(274,686
)
                     
Cash flows from financing activities:
                   
Stockholders' capital contribution
   
   
500,000
   
500,000
 
Proceeds from issuance of common stock
   
4,500,000
   
   
4,500,000
 
Net cash provided by financing activities
   
4,500,000
   
500,000
   
5,000,000
 
                     
Net increase in cash and cash equivalents
   
624,293
   
402,363
   
1,026,656
 
                     
Cash and cash equivalents, beginning of period
   
402,363
   
   
402,363
 
                     
Cash and cash equivalents, end of period
 
$
1,026,656
 
$
402,363
 
$
1,429,019
 
 
 
The accompanying notes are an integral part of these financial statements.

 
     
Page 6
       
ZIOPHARM, Inc.
     
(A Development Stage Enterprise)
     
Statements of Cash Flows…continued
     
Year Ended December 31, 2004 and
     
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004
     
       
 
               
       
For the Period
 
For the Period
 
       
from Inception
 
from Inception
 
       
(September 9, 2003)
 
(September 9, 2003)
 
   
Year Ended
 
through
 
through
 
   
December 31,
 
December 31,
 
December 31,
 
   
2004
 
2003
 
2004
 
Supplementary disclosure of cash flow information:
             
Cash paid for interest
 
$
 
$
 
$
 
 
                   
Cash paid for income taxes
 
$
 
$
 
$
 
                     
 
 
The accompanying notes are an integral part of these financial statements.

Page  7

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

1.
ORGANIZATION

 
ZIOPHARM, Inc. (the “Company”) is a development stage biopharmaceutical company that seeks to acquire, develop and commercialize, on its own or with other commercial partners, products for the treatment of important unmet medical needs in cancer.

The Company has operated at a loss since its inception in 2003 and has no revenues. The Company anticipates that losses may continue for the foreseeable future. At December 31, 2004, the Company’s accumulated deficit was approximately $5.8 million. The Company’s ability to continue operations after its current cash resources are exhausted depends on its ability to obtain additional financing and achieve profitable operations, as to which no assurances can be given. Cash requirements may vary materially from those now planned because of changes in the focus and direction of our research and development programs, competitive and technical advances, patent developments or other developments. Additional financing will be required to continue operations after we exhaust our current cash resources and to continue our long-term plans for clinical trials and new product development.

On June 6, 2005, the Company completed an offering of Series A Convertible Preferred Stock (Series A Stock) offering. The Company issued 8,379,564 shares at $2.16 per share for gross proceeds of approximately $18.1 million. In connection with the Series A Preferred Stock Offering, the Company compensated Paramount for its services in connection with the Offering through the payment of (a) cash commissions equal to 7% of the gross proceeds from the sale of the shares of Series A Preferred Stock, and (b) placement warrants to acquire 837,956 shares of Series A Preferred Stock (the Series A Stock Warrants), exercisable for a period of 7 years from the Closing Date at a per Share exercise price equal to 110% of the price per Share sold in the Offering. These commissions are also payable on additional sales by the Company of securities (other than in a public offering) to investors introduced to the Company by Paramount during the twelve (12) month period subsequent to the final closing of the Offering. The Company also paid Paramount an expense allowance of $50,000 to reimburse Paramount for its out-of-pocket expenses (the “Expense Allowance”). Also, for a period of 36 months from the final Closing, Paramount has the right of first refusal to act as the placement agent for any private sale of the Company’s securities. Lastly, the Company has agreed to indemnify Paramount against certain liabilities, including liabilities under the Securities Act. The net proceeds were $16.8 million have been allocated between the Series A Stock and the Series A Stock warrants, based on their relative fair value. The Company has valued the warrants using the Black-Scholes model recording a cost of $1,682,683. The net proceeds from the Offering will be used for research and development, licensing fees and expenses, and for working capital and general corporate purposes.
 

Page 8 

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
 
Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Cash and Cash Equivalents

Cash equivalents consist of short-term, highly liquid investments with a maturity of three months or less when purchased.

Concentrations of Credit Risk

Financial instruments which potentially subject the Company to concentrations of credit risk consist principally of cash and cash equivalents. The Company maintains cash accounts in commercial banks, which may, at times, exceed federally insured limits. The Company has not experienced any losses in such accounts. The Company believes it is not exposed to any significant credit risk on cash and cash equivalents.

Fair Value of Financial Instruments

The carrying amounts of cash equivalents, accounts payable and accrued expenses approximate their fair value because of their short-term nature. Short-term investments are carried at aggregate fair value. At December 31, 2004 and 2003, there were no short-term investments.

Income Taxes

The Company recognizes deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the Company’s financial statements or tax returns. Deferred tax assets and liabilities are determined based upon the difference between the financial reporting basis and the tax basis of existing assets and liabilities using enacted tax rates expected to be in effect in the year(s) in which the differences are expected to reverse. A valuation allowance is provided against deferred tax assets if it is more likely than not that such assets will not be realized.

Property and Equipment

Property and equipment are stated at cost. Depreciation and amortization are provided on the straight-line method over the estimated useful lives of the related assets, which is three years.
 

Page 9 

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES…continued
 
Research and Development Costs

Costs related to research and development are charged to expense when incurred. Such costs include proprietary research and development activities and expenses associated with research and development contracts, whether performed by the Company or contracted with independent third parties.

Accounting for Stock-Based Compensation

The Company accounts for stock-based awards to employees using the intrinsic value method as prescribed by Accounting Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to Employees, and related interpretations. The Company follows the provisions of SFAS No. 123, Accounting for Stock-Based Compensation, for disclosure purposes (Note 9). All stock-based awards to nonemployees are accounted for at their fair value in accordance with SFAS No. 123 and Emerging Issues Task Force (EITF) 96-18, Accounting for Equity Instruments that are Issued to Other than Employees for Acquiring, or in Conjunction with Selling, Goods or Services. The Company has adopted the disclosure provisions of SFAS No. 148, Accounting for Stock-Based Compensation - Transition and Disclosure - an amendment of SFAS No. 123, for all stock-based awards as of December 31, 2004.

The following illustrates the effect on net loss had the Company applied the fair value recognition provisions of SFAS No. 123:
 
 
 
2004
 
 2003
 
Net loss:
 
 
 
  
 
As reported
 
$
(5,687,297
)
$
(160,136
)
Stock-based compensation expense
 
 
 
 
 
 
 
included in reported net loss
 
 
703,116
 
 
 
Stock-based compensation expense
 
 
 
 
 
 
 
under the fair value-based method
 
 
(813,095
)
 
Pro forma net loss
 
$
(5,797,276
)
$
(160,136
)
 
 
 
 
 
 
 
 
Basic and diluted net loss per share:
 
 
 
 
 
 
 
As reported
 
$
(1.19
)
$
(1.02
)
Pro forma
 
$
(1.21
)
$
(1.02
)
 
 

Page  10

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

2.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES…continued

Accounting for Stock-Based Compensation...continued

The fair value of each stock option is estimated at the date of grant using the Black-Scholes option pricing model. The estimated weighted average fair value of stock options granted to employees in 2004 was approximately $0.66 per share. The following table summarizes the assumptions used in the Black-Scholes option pricing model:
 
   
2004
 
2003
 
           
Expected life
   
5 years
   
 
Expected volatility
   
134
%
 
 
Dividend yield
   
3.6
%
 
 
Weighted average risk-free interest rate
   
0
%
 
 
 
Recently Issued Pronouncements

In December 2004, the Financial Accounting Standards Board ("FASB") issued Statement of Financial Accounting Standards No. 123R, Share-Based Payment ("SFAS No. 123R"). This Statement is a revision of SFAS No. 123, Accounting for Stock-Based Compensation, and supersedes Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, and its related implementation guidance. SFAS No. 123R focuses primarily on accounting for transactions in which an entity obtains employee services in share-based payment transactions. The Statement requires entities to recognize stock compensation expense for awards of equity instruments to employees based on the grant-date fair value of those awards (with limited exceptions). SFAS No. 123R is effective for the first fiscal year beginning after December 15, 2005. Based on current options outstanding, the Company anticipates the adoption of this statement to result in approximately $313,009 of additional compensation costs to be recognized in the year of adoption.
 
3.
PROPERTY AND EQUIPMENT...continued
 
Property and equipment at December 31, 2004 and 2003 consisted of the following:

 
 
Estimated
 
 
 
 
 
 
 
Useful Life
 
 
 
 
 
 
 
(Years)
 
2004
 
2003
 
 
 
 
 
 
 
 
 
Computer equipment
   
3
 
$
78,914
 
$
 
Office equipment
   
3
   
179,193
   
 
Software
   
3
   
16,579
   
 
 
   
   
274,686
   
 
Less - accumulated
   
   
   
 
depreciation and amortization
   
   
33,953
   
 
 
   
 
$
240,733
 
$
 
 

Page  11

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

3.
PROPERTY AND EQUIPMENT...continued
 
Depreciation and amortization expense was $33,953 and $0 for the year ended December 31, 2004 and for the period from inception (September 9, 2003) to December 31, 2003, respectively.
 
4.
ACCRUED EXPENSES

Accrued expenses at December 31, 2004 and December 31, 2003, consisted of the following:
 
 
 
2004
 
2003
 
 
 
 
 
 
 
Employee compensation
 
$
506,391
 
$
 
Professional services
   
42,767
   
 
Research and development consulting services
   
258,218
   
 
Founders Fee
   
60,000
   
 
Other
   
12,000
   
 
 
   
   
 
   
$
879,376
 
$
 
 
5.
RELATED PARTY TRANSACTIONS

The Company has engaged Paramount BioCapital, Inc. (“Paramount”) to assist in placing shares of Series A Preferred Stock on a “best efforts” basis (see Note 10). Lindsay A. Rosenwald, M.D. is Chairman and Chief Executive Officer of Paramount. Dr. Rosenwald is also managing member of Horizon BioMedical Ventures, LLC (“Horizon”). On December 30, 2004, Horizon authorized the distribution of 4,848,376 shares of Common Stock (such shares, the “Horizon Distributed Shares”), in equal installments of 2,424,188 shares of Common Stock to Mibars, LLC (“Mibars”) and to Dr. Rosenwald and his designees (the “Designated Shares”). The disposition of the Designated Shares will be subject to certain restrictions as agreed to among Dr. Rosenwald and Dr. Rosenwald’s designees. Among other things, under certain circumstances set forth in pledge agreements between Dr. Rosenwald and his designees, Dr. Rosenwald has the right to re-acquire the Designated Shares from his designees. As a result of those rights, Dr. Rosenwald may be deemed to be an affiliate of the Company.

In connection with the December 22, 2004 Option Agreement with Southern Research Institute (“SRI”), the Company entered into a Finders Agreement, dated December 23, 2004, with Paramount pursuant to which the Company has agreed to compensate Paramount, for services in connection with the Company’s introduction to SRI through the payment of (a) a cash fee of $60,000 and (b) warrants to purchase 125,000 shares of the Company’s Common Stock at a price equal to $2.38 per share. The Company has estimated the fair value of such warrants using the Black-Scholes model, using an assumed risk-free rate of 3.93%, and expected life of 7 years, volatility of 134% and dividend yield of 0%. In December 2004, the Company expensed the $60,000 that was payable to Paramount and recognized compensation expense in the amount of $251,037 for the issuance of the warrants.
 

Page  12

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

5.
RELATED PARTY TRANSACTIONS...continued

In connection with the Series A Preferred Stock Offering (see Note 10), the Company and Paramount entered into an Introduction Agreement in January 2005 (the “Introduction Agreement”), pursuant to which the Company has agreed to compensate Paramount for its services in connection with the Offering through the payment of (a) cash commissions equal to 7% of the gross proceeds from the sale of the shares of Series A Preferred Stock, and (b) placement warrants to acquire a number of shares of Series A Preferred Stock equal to 10% of the number of shares of Series A Preferred Stock issued in the Offering, exercisable for a period of 7 years from the Closing Date at a per Share exercise price equal to 110% of the price per Share sold in the Offering. These commissions are also payable on additional sales by the Company of securities (other than in a public offering) to investors introduced to the Company by Paramount during the twelve (12) month period subsequent to the final closing of the Offering. The Company also agreed to pay to Paramount a non-accountable expense allowance of $50,000 to reimburse the Paramount for its out-of-pocket expenses (the “Expense Allowance”). Also, for a period of 36 months from the final Closing, Paramount has the right of first refusal to act as the placement agent for the private sale of the Company’s securities. Lastly, the Company has agreed to indemnify Paramount against certain liabilities, including liabilities under the Securities Act.

Dr. Michael Weiser, who is a member of the Board of Directors of the Company, is also a full-time employee of Paramount. In addition, David M. Tanen, who is a member of the Board of Directors of the Company, was a full-time employee of Paramount from July 1996 through August 2004. Mr. John Knox, our treasurer, is a full time Paramount employee.
 
6.
COMMITMENTS AND CONTINGENCIES

Lease Commitment

The Company leases office space in two locations under agreements expiring in 2009. The leases includes payment increases over the term of the agreements. The total amount of the lease payments is being charged to expense using the straight-line method over the term of the agreement.

Future minimum lease payments under noncancelable operating and capital leases as of December 31, 2004, were as follows:
 
 
   
Operating
 
   
Leases
 
       
2005
 
$
93,318
 
2006
   
103,434
 
2007
   
114,103
 
2008
   
121,455
 
2009
   
87,699
 
         
   
$
520,009
 
 
 

Page  13

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

   
6.
COMMITMENTS AND CONTINGENCIES...continued
 
License Agreement

Patent and Technology License Agreement- University of Texas M. D. Anderson Cancer Center and the Texas A&M University System.
 
On August 24, 2004, the Company entered into a patent and technology license agreement with The Board of Regents of the University of Texas System, acting on behalf of the University of Texas M. D. Anderson Cancer Center and the Texas A&M University System (collectively, the “Licensors”). Under this agreement, the Company was granted an exclusive, worldwide license to rights (including rights to US and foreign patent and patent applications and related improvements and know-how) for the manufacture and commercialization of two classes of organic arsenicals (water - and lipid-based) for human and animal use. The class of water-based organic arsenicals includes ZIO-101.
 
In October 2004, the Company received a notice of allowance for US Patent Application No. 10/337969, entitled “S-dimethylarsino-thiosuccinic acid S-dimethylarsino-2-thiobenzoic acid S-(simethylarsino) glutathione as treatments for cancer.” The patent application claims both therapeutic uses and pharmaceutical compositions containing a novel class of organic arsenicals, including ZIO-101, for the treatment of cancer.

As partial consideration for the license rights obtained, the Company made an upfront payment of $125,000 and granted the Licensors 500,000 shares of our Common Stock, as well as options to purchase up to an additional 100,250 shares of our Common Stock for $0.001 per share, following the successful completion of certain clinical milestones (the “Anderson Options”). The Company expensed the $125,000 upfront payment and recognized research and development compensation expense of $426,339 in connection with the issuance of the Common Stock in the year ended December 31, 2004. The Anderson Options will vest and become immediately exercisable with respect to 25,063 shares of our Common Stock upon the filing of an Investigational New Drug Application (“IND”) for ZIO-101, will vest and become exercisable with respect to an additional 50,125 shares upon the completion of dosing of the last patient for both Phase I clinical trials, and will vest and become exercisable with respect to an additional 25,062 shares upon the commencement of a pivotal clinical trial. In addition, the Licensors are entitled to receive certain milestone payments (the "Anderson Milestones"), including $100,000 to be paid upon the commencement of phase I clinical trials. The Company may be required to make additional payments upon achievement of certain other milestones, in varying amounts which on a cumulative basis may total $4,850,000.  In addition, the Licensors are entitled to receive royalty payments on sales from a licensed product should such a product be approved for commercial sale and sales of a licensed product be effected in the United States, Canada, the European Union or Japan. The Licensors also will be entitled to receive a portion of any fees that the Company may receive from a possible sublicensee. Finally, the Company agreed to remit to the Licensors $100,000 for at least each of the next two years to be used by the Licensors to conduct scientific research funding. The Company will have the exclusive right to all intellectual property rights resulting from such research pursuant to the terms of the license agreement.
 

Page  14

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

   
6.
COMMITMENTS AND CONTINGENCIES...continued
 
License Agreement...continued

The license agreement also contains other provisions customary and common in similar agreements within the industry, such as the right to sublicense our rights under the agreement. However, if we sublicense our rights prior to the commencement of a pivotal study (i.e., a human clinical trial intended to provide the substantial evidence of efficacy necessary to support the filing of an approvable NDA), the Licensors will be entitled to receive a share of the payments we receive in exchange for the sublicense (subject to certain exceptions).

License Agreement with DEKK-TEC, Inc.

On October 15, 2004, the Company entered into a license agreement with DEKK-TEC, Inc., pursuant to which it was granted an exclusive, worldwide license to the second lead product candidate, ZIO-201. As part of the signing of license agreement with DEKK-TEC, the Company expensed a $50,000 up-front payment in the year ended December 31, 2004.

In consideration for our license rights, DEKK-TEC is entitled to receive milestone payments upon the occurrence of certain events. In consideration for our license rights, DEKK-TEC is entitled to receive milestone payments upon the occurrence of certain events. The Company may be required to make payments upon achievement of such milestones, in varying amounts which on a cumulative basis may total $3,900,000. Of the aggregate milestone payments, most of the total amount will be creditable against future royalty payments, as referenced below. The Company also issued DEKK-TEC an option to purchase 55,125 shares of our Common Stock for $0.01 per share, which option vested with respect to 13,781 shares upon the execution of the license agreement. The Company has estimated the fair value of such options using the Black-Scholes model, using an assumed risk-free rate of 3.35%, and expected life of 5 years, volatility of 134% and dividend yield of 0%. The Company recorded a charge of $12,190 to research and development expense for the vested options. The option will vest with respect to the remaining shares upon certain milestone events, culminating with final FDA approval of the first NDA submitted by us (or by our sublicensee) for ZIO-201. Finally, DEKK-TEC also is entitled to receive royalty payments on the sales of ZIO-201 should it be approved for commercial sale.

The license agreement also contains other provisions customary and common in similar agreements within the industry.

Option Agreement with Southern Research Institute (“SRI”)

On December 22, 2004, the Company entered into an Option Agreement with SRI (the “Option Agreement”), pursuant to which the Company was granted an exclusive option to obtain an exclusive license to SRI’s interest in certain intellectual property, including exclusive rights related to certain isophosphoramide mustard analogs (the “SRI Option”).
 

Page  15

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

  
6.
COMMITMENTS AND CONTINGENCIES...continued
 
Option Agreement with Southern Research Institute (“SRI”)...continued
 
Also on December 22, 2004, the Company entered into a Research Agreement with SRI pursuant to which the Company agreed to spend a sum not to exceed $200,000 between the execution of the agreement and December 21, 2006, including a $25,000 payment that we made simultaneously with the execution of the agreement, to fund research and development work by SRI in the field of isophosphoramide mustard analogs (the “SRI Research Program”). Under the terms of the Option Agreement, the Company’s exclusive right to exercise the SRI Option will expire sixty days after the termination or expiration of the SRI Research Program and the delivery of the reports required thereunder.
 
Guarantees and indemnification Obligations
 
Certain officers and employees have agreements with the company that call for a guarantee bonus that is payable 30 days after employee’s anniversary date. Certain officer and employees also have specific severance agreements.
 
7.
INCOME TAXES
 
The components of the net deferred tax asset (liability) are as follows:
 
   
December 31,
 
December 31,
 
   
2004
 
2003
 
Net operating loss carryforwards
 
$
494,881
 
$
26,118
 
Start-up and organizational costs
   
1,502,217
   
 
Research and development credit carryforwards
   
81,670
   
 
Accrued bonus
   
200,343
   
 
Depreciation
   
(4,102
)
 
 
Other
   
8,816
   
 
Net deferred tax assets
   
2,283,825
   
26,118
 
Deferred tax asset valuation allowance
   
(2,283,825
)
 
(26,118
)
 
  $     
$
 

8.
CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY
 
We have authorized capital of 50,000,000 shares, of which 30,000,000 shares have been designated as common stock, par value $.001 per share (the “Common Stock”), and 20,000,000 shares have been designated as preferred stock, par value $.001 per share.
 

Page  16

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

    
8.
CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY...continued
 
Convertible Preferred Stock

Voting Rights

The holders of Series A Preferred Stock will be entitled to vote together with all other holders of the Company’s voting stock on an “as-converted” basis on all matters submitted to a vote of holders generally. The holders of Series A Preferred Stock, voting as a separate class, will also have the right to approve by a 66% supermajority certain actions proposed to be taken by the Company.

Dividend Rights

The holders of Series A Preferred Stock will be entitled to receive dividends on an equal basis with the holders of Common Stock when, as and if declared by the Board of Directors.

Liquidation Preferences

The Series A Preferred Stock shall rank senior to the Common Stock and any future class of junior securities, and will be entitled to a liquidation preference equal to the Stated Value, subject to adjustment (as defined in the Certificate of Designations), upon any liquidation, dissolution or winding up of the Company or upon a voluntary or involuntary bankruptcy of the Company.

Conversion Rights

Each share of Series A Preferred Stock will be convertible into Common Stock at any time at the option of the holder thereof (the Series A Preferred Stock and the Common Stock issuable upon conversion of the Series A Preferred Stock are sometimes herein collectively referred to as the “Securities”). All of the outstanding shares of Series A Preferred Stock will automatically convert into Common Stock upon the first date (the “Trading Date”) on which the Common Stock (or securities received in exchange for Common Stock) trades on a national securities exchange or on NASDAQ, including the Over the Counter Bulletin Board (a “Trading Event”). The rate at which shares of Series A Preferred Stock will convert into Common Stock will initially be one-for-one, subject to adjustment in connection with certain anti-dilution protections and other adjustments.
 

Page  17

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

8.
CONVERTIBLE PREFERRED STOCK AND STOCKHOLDERS’ EQUITY...continued
 
Convertible Preferred Stock...continued

Conversion Rights...continued

In the event of a reclassification, capital reorganization or other similar change in the outstanding shares of Common Stock, a consolidation or merger of the Company with or into another entity (other than a consolidation or merger in which the Corporation is the continuing entity and which does not result in a reclassification, capital reorganization or other change of outstanding shares of Common Stock other than the number thereof), or a sale of the property of the Company as, or substantially as, an entirety (other than a sale/leaseback, mortgage or other financing transaction), the Series A Preferred Stock will become convertible into the kind and number of shares of stock or other securities or property (including cash) that the holders of Series A Preferred Stock would have received if the Series A Preferred Stock had been converted into Common Stock immediately prior to such reclassification, capital reorganization or other change, consolidation, merger or sale.

Common Stock

We currently have issued and outstanding 5,512,500 shares of Common Stock and no shares of preferred stock.

In September 2003, the Company issued 2,000,000 (before the split discussed below) shares of Common Stock at $0.25 per share for gross proceeds of $500,000.

In January 2004, the Company issued 18,000,000 (before the split discussed below) shares of Common Stock at $0.25 per share for gross proceeds of $4,500,000.

In February 2004, the Company amended its articles of incorporation to provide for the combination of the Company’s common stock, par value $0.001 per share on a 1-for-4 basis (all other share amounts presented reflect the reverse split).
 

Page  18

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

    
9.
STOCK OPTION PLAN
 
We have adopted the 2003 Stock Option Plan (the “Plan”), under which we have reserved for the issuance of 2,500,000 shares of our Common Stock. The Plan was approved by our stockholders on December 21, 2004. The Company has issued under its 2003 Stock Option Plan 1,170,826 shares that are issuable upon exercise of outstanding options to purchase Common Stock. To date, we have issued to our employees options to purchase up to 990,326 shares of the Company’s Common Stock. In addition, we have issued to our directors options to purchase up to 180,000 shares of the Company’s Common Stock, as well as options to a consultant in connection with services rendered to purchase up to 500 shares of the Company’s Common Stock. The Company has estimated the fair value of such options using the Black-Scholes model, using an assumed risk-free rate of 4.23%, and expected life of 10 years, volatility of 134% and dividend yield of 0%. The options issued to the consultant were valued at $1,050, and recorded as a charge to compensation expense. We have also reserved an aggregate of 155,375 additional shares for issuance under options granted outside of the 2003 Stock Option Plan and warrants to purchase 125,000 shares of the Company’s Common Stock to the Paramount as compensation for services rendered in connection with our entering into an option agreement with Southern Research Institute. In connection with the warrants issued, the Company recorded a charge of $251,037 to general and administrative expense. The Company has valued the options using the Black-Scholes model as of the issue date of the warrants. There are no other securities of the Company currently issued or outstanding.

Transactions under the Plan for the year December 31, 2004 were as follows:
 
 
 
 
 
Weighted
 
 
 
 
 
Average
 
 
 
Number of
 
Exercise
 
 
 
Shares
 
Price
 
Outstanding, January 1, 2004
   
 
$
 
Granted
   
1,170,826
   
0.63
 
Exercised
   
   
 
Canceled
   
   
 
Outstanding, December 31, 2004
   
1,170,826
 
$
0.63
 
 
   
   
 
Options available for future grants
   
1,329,174
   
 
 

Page  19

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

    
9.
STOCK OPTION PLAN…continued

The following table summarizes information about stock options outstanding at December 31, 2004:

   
Options Outstanding
 
Options Exercisable
 
Exercise Price
 
Number Outstanding
 
Weighted-Average Remaining Contractual Life (Years)
 
Weighted-Average
Exercise
Price
 
Number Exercisable
 
Weighted-
Average
Exercise
Price
 
                       
$0.04
   
536,263
   
9.03
 
$
0.04
   
 
$
 
$0.22
   
100,250
   
9.08
 
$
0.22
   
 
$
 
$0.85
   
353,813
   
9.51
 
$
0.85
   
 
$
 
$2.16
   
180,500
   
9.98
 
$
2.16
   
500
 
$
2.16
 
     
1,170,826
   
9.33
 
$
0.63
   
500
 
$
2.16
 

10.
 
On August, 3, 2005 the Company entered into an Agreement and Plan of Merger dated as of August 3, 2005 (as may be amended from time to time, the “Merger Agreement”) with EasyWeb, Inc., a Delaware corporation (OTC:ESYW.OB) (“EasyWeb”), and ZIO Acquisition Corp., a Delaware corporation and wholly owned subsidiary of EasyWeb (“ZIO Acquisition”). EasyWeb is a company that was incorporated in September 1998 and has been in the business of designing, marketing, selling and maintaining customized and template turnkey sites on the Internet that are hosted by third parties. Currently, however, EasyWeb has no operating business and has limited assets and liabilities. Pursuant to the Merger Agreement, ZIO Acquisition will merge with and into ZIOPHARM, with ZIOPHARM remaining as the surviving company and a wholly-owned subsidiary of EasyWeb (the “Merger”). In connection with the Merger, ZIO Acquisition will cease to exist and the surviving company will change its corporate name to ZIOPHARM, Inc. In exchange for all of their shares of capital stock in ZIOPHARM, the Stockholders will receive a number of shares of Common Stock of EasyWeb such that, upon completion of the Merger, the then-current Stockholders will hold approximately 96.8% of the outstanding shares of Common Stock of EasyWeb on a fully-diluted basis. Upon completion of the Merger, EasyWeb will cease all of its remaining operations, if any, and will adopt and continue implementing the business plan of ZIOPHARM. Further, upon completion of the Merger, the current officers and directors of EasyWeb will resign, the current officers and directors of ZIOPHARM will be appointed officers and directors of EasyWeb, and EasyWeb will change its name to ZIOPHARM Oncology, Inc. (or such other name as the Board of Directors shall determine).
 

Page  20

ZIOPHARM, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
Year Ended December 31, 2004 and
For the Periods from Inception (September 9, 2003) through December 31, 2003 and 2004

 
10.
    
On June 6, 2005, the Company completed its Series A Convertible Preferred Stock offering. (see Note 1).

On May 26, 2005, the Company signed a lease for five years with USP 1180 Avenue of the Americas to lease approximately 2,580 square feet of office space.

On April 25, 2005, the company entered into a Surrender and Termination Agreement and an Escrow agreement with WE George Street, L.L.C and Cohm Birnbaum & Shea P.C. relating to the escrow of a termination fee for $90,000, for an early termination to the New Haven, Connecticut office space.
 

Unassociated Document
Notes to Unaudited Pro Forma Combined Financial Statements for the six months ended June 30, 2005

1.  
Basis of Presentation

The unaudited Pro Forma combined financial statements present the Pro Forma combined financial position and results of operations of the companies based upon historical and projected financial information after giving effect to the merger of ZIOPHARM, Inc. (ZIOPHARM) with and into ZIO Acquisition Corp. (ZIO Acquisition) a wholly owned subsidiary of EasyWeb, Inc. (EasyWeb). The unaudited pro forma financial statements have been prepared to reflect certain adjustments to our historical financial information, which are described in the Notes to Unaudited Pro Forma Financial Statements, to give effect to the merger, as if it had been completed on June 30, 2005 for balance sheet purposes and for January 1, 2005 for the statement of operations.

The unaudited Pro Forma combined financial statements are based on the balance sheets of the following:

a)  
EasyWeb at June 30, 2005 (unaudited).

b)  
ZIOPHARM, Inc. at June 30, 2005 (unaudited)

The unaudited Pro Forma combined financial statements included the statements of operations for the following:

a)  
EasyWeb for the six months ended at June 30, 2005 (unaudited).

b)  
ZIOPHARM, Inc. for the six months ended June 30, 2005 (unaudited)

The unaudited Pro Forma combined financial statements are not necessarily indicative of the actual results that would have occurred had the merger occurred on the dates indicated and not necessarily indicative of future earnings or financial position.

This unaudited combined Pro Forma information should be read in conjunction with the annual audited financial statements of EasyWeb as of and for the year ended December 31, 2004 included in EasyWeb’s Annual Report on From 10-KSB and the quarterly report of EasyWeb on Form 10-QSB for the quarter ended June 30, 2005. In addition, this unaudited combined Pro Forma information should be read in conjunction with the audited financial statements of ZIOPHARM, Inc. as of December 31, 2004 and for the year then ended, included as an Exhibit 99.2 in this Current Report on Form 8-K.




2.  
Pro Forma Adjustments

The unaudited combined financial statements include the following Pro Forma adjustments:

A)  
In connection with the merger, ZIO Acquisition will merge with and into ZIOPHARM with ZIOPHARM remaining as the surviving corporation and a wholly owned subsidiary of EasyWeb, Inc. following the merger. In exchange for the shares of ZIOPHARM, Inc. capital stock, the holders of ZIOPHARM Common Stock and ZIOPHARM Preferred Stock received a number of shares of common stock, $.001 par value per share of EasyWeb, Inc. such that upon completion of the Merger, ZIOPHARM’s current stockholders will hold approximately 97.4% of the outstanding EasyWeb Common Stock on a fully-diluted basis. In order that ZIOPHARM, Inc. stockholders obtain such percentage of the EasyWeb Common stock following the merger, each holder of the ZIOPHARM Common Stock will receive approximately .50097 (the “Exchange Ratio”) shares of EasyWeb’s Common stock (subject to appropriate adjustment as provided for in the merger agreement) for each share of ZIOPHARM Common Stock held by such holder immediately prior to the Merger, and each holder of ZIOPHARM Preferred Stock will receive the number of shares of EasyWeb’s Common Stock equal to the product of the Exchange Ratio multiplied by the number of shares of ZIOPHARM Common Stock into which shares of the holder’s ZIOPHARM Preferred Stock are convertible immediately prior to the Merger.

B)  
In connection with the merger, EasyWeb will cease all of its remaining operations, if any, and will adopt and continue implementing the business plan of ZIOPHARM.

C)  
In connection with the merger, the current officers and directors of EasyWeb, Inc. will resign, and the current officers and directors of ZIOPHARM, Inc. will be appointed officers and directors of EasyWeb. In connection with the merger, EasyWeb changed its name to ZIOPHARM Oncology, Inc.

D)  
The acquisition has been accounted for as a reverse merger of ZIOPHARM with and into a shell company, with ZIOPHARM being the surviving company.

E)  
In connection with the merger, ZIOPHARM, Inc. was to make certain payments not to exceed for $425,000.

F) As a public company, ZIOPHARM Oncology expects to incur, on a Pro Forma basis, professional fees (legal, accounting and transfer agent fees) and premium expense for directors and officers insurance of approximately $179,150 per year, or $44,787.50 per quarter.





ZIOPHARM Oncology, Inc.
(A Development Stage Enterprise)
Pro Forma Combined Balance Sheet
June 30, 2005
(Unaudited)
 
 
 
EasyWeb, Inc.
 
ZIOPHARM, Inc.
 
Proforma
Adjustments
 
 
 
ZIOPHARM
Oncology, Inc. (C)
 
ASSETS
                     
Current assets:
                     
Cash and cash equivalents
 
$
1,118
 
$
13,259,983
 
$
(425,000
)(E)
 
$
12,836,101
 
Prepaid expenses and other current assets
   
   
257,217
   
         
257,217
 
Total current assets
   
1,118
   
13,517,200
   
(425,000
)
       
13,093,318
 
                                 
Property and equipment, net
   
   
193,996
   
         
193,996
 
                                 
Deposits
   
   
56,032
   
         
56,032
 
                                 
   
$
1,118
 
$
13,767,228
 
$
(425,000
)
     
$
13,343,346
 
                                 
                                 
                                 
                                 
                                 
LIABILITIES AND STOCKHOLDERS' EQUITY
                               
Current liabilities:
                               
Accounts payable
 
$
9,914
 
$
448,593
 
$
       
$
458,507
 
Accrued expenses
   
   
993,047
   
         
993,047
 
Total current liabilities
   
9,914
   
1,441,640
   
         
1,451,554
 
                                 
                                 
Commitments and contingencies
                               
                                 
Stockholders' equity:
                               
Convertible preferred stock
   
   
15,076,733
   
(15,076,733
)(A)
 
 
(0
)
Convertible preferred stock warrants
   
   
1,682,863
   
(1,682,863
)(A)
 
 
 
Common stock
   
183,613
   
5,513
   
(181,968
)(A)
 
 
7,158
 
Additional paid-in capital
   
118,353
   
5,697,603
   
16,630,802
 (A)
 
 
22,446,758
 
Deficit accumulated during the development stage
   
(310,762
)
 
(10,137,124
)
 
(114,238
)(A)(D)
 
 
(10,562,124
)
Total stockholders' equity
   
(8,796
)
 
12,325,588
   
(425,000
)
       
11,891,792
 
                                 
   
$
1,118
 
$
13,767,228
 
$
(425,000
)
     
$
13,343,346
 
                                 



 
Ziopharm Oncology, Inc.
(A Development Stage Enterprise)
Pro Forma Combined Statement of Operations Six Months ended June 30, 2005
(Unaudited)
 
 
EasyWeb, Inc.
 
ZIOPHARM, Inc.
 
Pro Forma
Adjustments
 
 
 
ZIOPHARM
Oncology, Inc.
Pro Forma
 
Research contract revenue
 
$
 
$
 
$
       
$
 
                                 
Operating expenses and other income:
                               
Research and development, including
                               
costs of research contracts
   
   
2,867,919
   
         
2,867,919
 
General and administrative
   
9,954
   
1,505,250
   
514,575
 (E)(F)
 
 
2,029,779
 
Total operating expenses
   
9,954
   
4,373,169
   
514,575
         
4,897,698
 
Operating loss
   
(9,954
)
 
(4,373,169
)
 
(514,575
)
       
(4,897,698
)
Interest income
   
   
(83,479
)
 
         
(83,479
)
Net loss
 
$
(9,954
)
$
(4,289,690
)
$
(514,575
)
     
$
(4,814,219
)
Exhibit 99.3
 
 
 Press Release
 Source: ZIOPHARM Oncology, Inc
 
ZIOPHARM, Inc. and EasyWeb, Inc. Merge to Form ZIOPHARM Oncology, Inc.

Thursday September 15, 8:00 am ET 

NEW YORK and ENGLEWOOD, Colo.--(BUSINESS WIRE)--Sept. 15, 2005--ZIOPHARM, Inc. (private) and EasyWeb, Inc. (OTC Bulletin Board: ESWB.OB - News) today announced that they have completed the previously announced merger of the two companies. The Company's common stock trades on the OTC Bulletin Board under the symbol "ESWB.OB" until a new ticker symbol has been issued and announced. In connection with the merger, the combined company has changed its name to ZIOPHARM Oncology, Inc.
 
Jonathan Lewis, M.D., Ph.D. will serve as Chief Executive Officer and as a Board member of ZIOPHARM Oncology, Inc. along with the remainder of the former Board of Directors of ZIOPHARM, Inc.
 
"Given our stage of development with two products in phase I trials, it is the appropriate time for the company to be public," commented Dr. Lewis. "We are excited to leverage the strength of the new public company for continued development of our current pipeline and for in-licensing additional product candidates."
 
The Company is currently in U.S. phase I studies for two product candidates known as ZIO-101 and ZIO-201.
 
 
·  
ZIO-101, subject of an issued U.S. patent and applications internationally, is the first of a new class of organic arsenicals that are potentially safer and more active for cancer treatment than approved inorganic arsenicals. The Company initiated phase I studies in adults with diverse hematologic cancers in April 2005, and a parallel phase I study in adults and children with solid tumors in May 2005. The Company is planning for an additional phase I/II trial in patients with advanced myeloma.
 
 
·  
ZIO-201, subject of U.S. and international patent applications, is a proprietary formulation of isophosphoramide mustard, the active metabolite of ifosfamide. Ifosfamide is an alkylating drug used to treat diverse cancers including testicular cancer, bone and soft-tissue sarcoma, cervical, breast and lung cancers. A phase I clinical trial is being conducted at two centers in patients with advanced cancers. The Company expects this trial to be followed by a targeted phase I/II study in persons with advanced sarcoma. The Company is also planning a phase I study in sarcoma and lymphoma with a modified dosing schedule and a phase II study in pediatric sarcoma.
 
 
"With early indications of safety and activity in our phase I studies, we continue to progress confidently toward pivotal trials for both ZIO-101 and ZIO-201 in early 2007," said Dr. Lewis. "We estimate that the market potential of these two products together at peak year sales could approach $800 million, and we look forward to the challenge and rewards of being a publicly traded biopharmaceutical company."
 

 
About ZIOPHARM Oncology, Inc.
 
 
ZIOPHARM Oncology, Inc. is a biopharmaceutical company seeking to acquire, develop and commercialize a diverse, risk-sensitive portfolio of in-licensed cancer drugs that address unmet medical needs. Currently, the Company is in U.S. phase I studies for its two product candidates, ZIO-101 and ZIO-201. For more information, visit www.ziopharm.com.
 
Forward-Looking Safe Harbor Statement:
 
This press release contains forward-looking statements for ZIOPHARM Oncology, Inc. that involve risks and uncertainties that could cause the Company's actual results to differ materially from the anticipated results and expectations expressed in these forward-looking statements. These statements are based on current expectations, forecasts and assumptions that are subject to risks and uncertainties, which could cause actual outcomes and results to differ materially from these statements. Among other things, there can be no assurance that any of the Company's development efforts relating to its product candidates will be successful, or such product candidates will be successfully commercialized. Other risks that affect forward-looking information contained in this press release include the possibility of being unable to obtain regulatory approval of the Company's product candidates, the risk that the results of clinical trials may not support the Company's claims, and the Company's reliance on third parties to develop its product candidates. The Company assumes no obligation to update these forward-looking statements, except as required by law.
 


Contact: 
ZIOPHARM Oncology, Inc.
Kelly Luethje, 617-259-1975
Manager, Investor Relations/Communication


Source: ZIOPHARM Oncology, Inc.