**Exhibit3.1**

 

**THIRD AMENDED AND RESTATED**

**CERTIFICATE OF INCORPORATION**

**OF**

**ADVANCED LIFE SCIENCES HOLDINGS, INC.**

 

ONE.Pursuant to Sections 242 and 245 of the General Corporation Law of theState of Delaware (the “*DGCL*”),this Third Amended and Restated Certificate of Incorporation restates andintegrates and further amends the provisions of the Certificate ofIncorporation of Advanced Life Sciences Holdings, Inc., originally incorporatedDecember 10, 2004, as heretofore supplemented or amended.

 

TWO.The text of the Second Amended and Restated Certificate of Incorporation asheretofore amended or supplemented is hereby restated and further amended toread in its entirety as follows:

 

**ARTICLE 1**

**Name**

 

Thename of the corporation is Advanced Life Sciences Holdings, Inc. (the “*Corporation*”).

 

**ARTICLE 2**

**Registered Office and Registered Agent**

 

Theaddress of the Corporation’s registered office in the State of Delaware is 1209Orange Street, Wilmington, DE 1980l, in the County of New Castle. The name ofits registered agent at such address is The Corporation Trust Company.

 

**ARTICLE 3**

**Purpose**

 

Thepurpose of the Corporation is to engage in any lawful act or activity for whichcorporations may be organized under the DGCL.

 

**ARTICLE 4**

**Capital Stock**

 

4.1*          **Amount*.  The Corporation has the authority to issueSix Hundred Twenty-Five Million (625,000,000) shares of capital stock (“*Stock*”).

 

4.2*          **PreferredStock*.  The Corporation has theauthority to issue up to Five Million (5,000,000) of the initial Six HundredTwenty-Five Million (625,000,000) shares as a separate and single class ofshares known as “Preferred Stock,” which may be issued in one or more series.The Preferred Stock may be issued from time to time in one or more series. TheBoard of Directors is hereby expressly authorized to provide for the issue ofall or any of the shares of the Preferred Stock in one or more series, and tofix the number of shares and to determine or alter for each such series, suchvoting powers, full or limited, or no voting powers, and such designation,preferences, and relative, participating, optional, or other rights and suchqualifications, limitations, or restrictions thereof, as shall be stated andexpressed in the resolution or resolutions adopted by the Board of Directorsproviding for the issuance of such shares and as may be permitted by the DGCL.The Board of Directors is also expressly authorized to increase or decrease thenumber of shares of any series subsequent to the issuance of shares of thatseries, but not below the number of shares of such series then outstanding. Incase the number of shares of any series shall be decreased in accordance withthe foregoing sentence, the shares constituting such decrease shall resume thestatus that they had prior to the adoption of the resolution originally fixingthe number of shares of such series. The number of authorized shares ofPreferred Stock may be increased or decreased (but not below the number ofshares thereof then outstanding) by the affirmative vote of the holders of amajority of the Common Stock, without a vote of the holders of the PreferredStock, or of any series thereof, unless a vote of any 

 

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suchholders is required pursuant to the terms of any certificate of designationfiled with respect to any series of Preferred Stock.

 

4.3*          **CommonStock*.  Of the Six Hundred Twenty-FiveMillion (625,000,000) shares the Corporation has authority to issue, SixHundred Twenty Million (620,000,000) shares will constitute a separate class ofshares known as “Common Stock,” which shall have $0.01 par value per share.

 

4.4           The following is adescription of the relative powers, preferences and participating, optional orother special rights, and the qualifications, limitations or restrictions ofthe Common Stock.

 

(a)*          **Voting*.  At every meeting of the stockholders of theCorporation in connection with the election of directors and all other matterssubmitted to a vote of stockholders, every holder of Common Stock is entitledto one vote in person or by proxy for each share of Common Stock registered inthe name of the holder on the transfer books of the Corporation. Except asotherwise required by law, the holders of Common Stock shall vote together as asingle class, subject to any right that may be conferred upon holders ofPreferred Stock to vote together with holders of Common Stock on all matterssubmitted to a vote of stockholders of the Corporation.

 

(b)*          **Dividendsand Other Distributions*. Subject to the rights of the holders of Preferred Stock, holders ofCommon Stock are entitled to receive such dividends and other distributions incash, stock of any corporation (other than Common Stock) or property of theCorporation as may be declared thereon by the Board of Directors from time totime out of assets or funds of the Corporation legally available therefor, andshall share equally on a per share basis in all such dividends and otherdistributions.

 

(c)*          **Liquidation,Dissolution and Winding Up*.  In the event of any liquidation, dissolutionor winding up of the affairs of the Corporation, whether voluntary orinvoluntary, after payment in full of the amounts required to be paid to theholders of Preferred Stock, the remaining assets and funds of the Corporationare distributed pro rata to the holders of shares of Common Stock. For purposesof this subsection (c), the voluntary sale, conveyance, lease, exchange ortransfer (for cash, shares of stock, securities or other consideration) of allor substantially all of the assets of the Corporation or a consolidation ormerger of the Corporation with one or more other corporations (whether or notthe Corporation is the corporation surviving the consolidation or merger) shallnot be deemed to be a liquidation, dissolution or winding up, voluntary orinvoluntary.

 

(d)*          **Reorganizationsand Consolidations*.  In case ofany reorganization or any consolidation of the Corporation with one or moreother corporations or a merger of the Corporation with another corporation,each holder of a share of Common Stock is entitled to receive with respect tothat share the same kind and amount of shares of stock and other securities andproperty (including cash) receivable upon the reorganization, consolidation ormerger by any other holder of Common Stock.

 

4.5           The number of authorizedshares of Stock may be increased or decreased (but not below the number ofshares thereof then outstanding) by the affirmative vote of the holders of amajority of the votes entitled to be cast by the holders of the Common Stock,irrespective of the provisions of Section 242(b)(2) of DGCL or anycorresponding provision hereinafter enacted.

 

4.6           No holder of Stock of theCorporation has any preemptive or preferential right of subscription to anyshares of any class of Stock of the Corporation whether now or hereafterauthorized, or to any obligation convertible into stock of the Corporation, orany right of subscription therefore, other than such rights, if any, as theBoard of Directors in its discretion from time to time determines.

 

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**ARTICLE 5**

**Board of Directors**

 

5.1           The business and affairs ofthe Corporation are managed by or under the direction of a Board of Directors.The number of directors of the Corporation constituting the whole board arefixed in the manner provided in the by-laws. The election of directors need notbe by ballot.

 

5.2           The directors are dividedinto three classes, Class I, Class II and Class III. The initialterm of office of the Class I, Class II and Class III directorsexpired at the annual meeting of stockholders in 2006, 2007, and 2008,respectively. The number of directors are apportioned among the classes by theBoard of Directors so as to maintain the number of directors in each class asnearly equal as reasonably possible, and any additional director of any classelected to fill a vacancy resulting from an increase in such class shall holdoffice for a term that shall coincide with the remaining term of that class. Ateach annual meeting of stockholders, successors to the class of directors whoseterm expires at that annual meeting are elected for a three-year term. In nocase will a decrease in the number of directors shorten the term of anyincumbent director even though such decrease may result in an inequality of theclasses until the expiration of such term. A director shall hold office untilthe annual meeting of the year in which his or her term expires and until hisor her successor are elected and shall qualify, subject, *however,* to prior death, resignation,retirement or removal from office. Except as required by law or the provisionsof this Third Amended and Restated Certificate of Incorporation, all vacancieson the Board of Directors and newly created directorships are filled by theBoard of Directors. Any director elected to fill a vacancy not resulting froman increase in the number of directors shall have the same remaining term asthat of his or her predecessor. Notwithstanding anything to the contrarycontained in this Third Amended and Restated Certificate of Incorporation, theaffirmative vote of the holders of a majority of the voting power of the sharesentitled to vote generally in the election of directors are required to amend,alter or repeal, or to adopt any provision inconsistent with, this Article 5.

 

5.3           Notwithstanding theforegoing, whenever the holders of any one or more classes or series ofPreferred Stock issued by the Corporation have the right, voting separately byclass or series, to elect directors at an annual or special meeting ofstockholders, the election, term of office, filling of vacancies and otherfeatures of such directorship are governed by the terms of this Third Amendedand Restated Certificate of Incorporation and any resolutions of the Board ofDirectors applicable thereto, and such directors so elected shall not bedivided into classes pursuant to this Article 5.

 

5.4           Subject to the rights of theholders of any classes or series of Preferred Stock, any director, or theentire Board of Directors, may be removed from office at any time, but only forcause and only by the affirmative vote of the holders of a majority of thevoting power of all the shares of the Corporation entitled to vote for theelection of directors.

 

**ARTICLE 6**

**Amendment of By-laws**

 

Infurtherance and not in limitation of the powers conferred by the laws of theState of Delaware, the Board of Directors expressly is authorized to make,alter, amend and repeal the by-laws of the Corporation, in any manner notinconsistent with the laws of the State of Delaware or this Third Amended andRestated Certificate of Incorporation, subject to the power of the stockholdersof the Corporation to amend, alter or repeal any by-laws made by the Board ofDirectors.

 

**ARTICLE 7**

**Stockholder Meetings**

 

Subjectto the rights of the holders of Preferred Stock, any action required orpermitted to be taken by the stockholders of the Corporation must be effectedat a duly called annual or special meeting of such holders and may not beeffected by any consent in writing by such holders. Subject to the rights ofthe holders of Preferred Stock, special meetings of stockholders of theCorporation may be called only by the 

 

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Chairman of the Board or bythe Board of Directors pursuant to a resolution. Business transacted at anyspecial meeting of stockholders are confined to the purpose or purposes of themeeting as stated in the notice of the meeting. Notwithstanding anythingcontained in this Third Amended and Restated Certificate of Incorporation tothe contrary, any amendment to or deletion of this Article 7 shall requirethe affirmative vote of the holders of a majority of the voting power of alloutstanding shares of capital stock of the Corporation entitled to votegenerally in the election of directors.

 

**ARTICLE 8**

**Limitation of Liability**

 

Adirector of the Corporation shall not be personally liable to the Corporationor its stockholders for monetary damages for breach of fiduciary duty as adirector, except for liability (a) for any breach of the director’s dutyof loyalty to the Corporation or its stockholders, (b) for acts oromissions not in good faith or which involve intentional misconduct or aknowing violation of law, (c) under Section 174 of the DGCL or (d) forany transaction from which the director derived an improper personal benefit.If DGCL is amended after approval of this Article by the stockholders toauthorize the further elimination or limitation of the liability of directors,then the liability of directors are eliminated or limited to the full extentauthorized by the DGCL, as so amended.

 

**ARTICLE 9**

**Amendment of Certificate**

 

Subjectto the provisions of this Third Amended and Restated Certificate ofIncorporation, the Corporation reserves the right to amend, alter, change orrepeal any provision contained in this Third Amended and Restated Certificateof Incorporation, in the manner now or hereafter prescribed by statute, and allrights conferred upon stockholders in this Third Amended and RestatedCertificate of Incorporation are granted subject to this reservation.

 

THREE.This Third Amended and Restated Certificate of Incorporation has been dulyapproved by the Board of the Corporation.

 

FOUR.This Third Amended and Restated Certificate of Incorporation was approved bythe holders of the requisite number of shares of said corporation in accordancewith Section 228 of the General Corporation Law. This Third Amended andRestated Certificate of Incorporation has been duly adopted in accordance withthe provisions of Sections 242 and 245 of the DGCL by the stockholders ofthe Corporation.

 

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INWITNESS WHEREOF, the undersigned has executed this certificate as of the 8th dayof April, 2010.

 
|   | /s/ Michael T. Flavin   |
|--------|-------------------------|
|   | Michael T. Flavin       |
|   | Chief Executive Officer |

 

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