**Exhibit 3.1**

 

**CERTIFICATEOF INCORPORATION**

 

**OF**

 

**EARTHBIOFUELS, INC.**

 

**(ADelaware Corporation)**

 

I, theundersigned, for the purposes of incorporating and organizing a corporationunder the General Corporation Law of the State of Delaware (the “DGCL”), do executethis Certificate of Incorporation and do hereby certify as follows:

 
| **FIRST.**  | The name of the corporation is Earth  Biofuels, Inc. (the “Corporation”).                                                                                                                                                |
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| **SECOND.** | The address of the Corporation’s registered  office in the State of Delaware is 615 South DuPont Highway, Dover, County of  Kent, Delaware 19901. The name of its registered agent at such address is  Capitol Services, Inc. |
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| **THIRD.**  | The purpose of the Corporation is to engage  in any lawful act or activity for which corporations may be organized under  the DGCL.                                                                                                     |
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| **FOURTH.** |                                                                                                                                                                                                                                    |

 

(a)   *Authorized Capital*. The total number of shares of all classes of stock which the Corporationshall have authority to issue is 265,000,000, of which 250,000,000 shares, parvalue of $0.001 shall be designated as Common Stock (“Common Stock”), and15,000,000 shares, par value of $0.001, shall be designated as Preferred Stock(“Preferred Stock”).

 

(b)  *Common Stock*.

 

(i)                                     *Dividends*.  Subject tothe rights, if any, of the holders of Preferred Stock with respect to thepayment of dividends and the requirements, if any, with respect to the settingaside of sums as sinking funds or redemption or purchase accounts for thebenefit of such holders and subject to any other conditions that may be fixedin or pursuant to the provisions of paragraph (c)  of this Article Fourth,the holders of Common Stock shall be entitled to receive such dividends, ifany, as may be declared from time to time by the Board of Directors on theCommon Stock out of assets which are legally available therefor.  Any such dividends shall be divided among theholders of the Common Stock on a pro rata basis.

 

(ii)                                  *Liquidation*.  In the event of any Liquidation of theCorporation, after payment or provision for payment of the debts andliabilities of the Corporation and after distribution to the holders ofPreferred Stock of the amounts fixed in or pursuant to the provisions ofparagraph (c) of this Article Fourth, the holders of the Common Stockshall be entitled to receive all the remaining assets of the Corporation,tangible and

 

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intangible, of whatever kind available for distribution tostockholders.  Any such assets shall bedivided among the holders of Common Stock on a pro rata basis.

 

(iii)                               *Voting*.  Except as may otherwise be required by lawand subject to the rights of the holders of Preferred Stock fixed in orpursuant to paragraph (c)  of this Article Fourth, each holder ofCommon Stock shall have one vote for each share of Common Stock held by suchholder on each matter submitted to a vote of the stockholders.

 

(c)                                  *PreferredStock*.

 

(i)                                     *General*.  Shares ofthe Preferred Stock may be issued from time to time in one or more series, theshares of each series to have any designations and powers, preferences andrights, and qualifications, limitations and restrictions thereof, as are statedand expressed in any resolution or resolutions providing for the issue of suchseries adopted by the Board of Directors as hereinafter prescribed (a “PreferredStock Designation”).

 

(ii)                                  *Authority ofBoard of Directors; Preferred Stock Designation*.  Authority is hereby expressly granted to andvested in the Board of Directors to authorize the issuance of the PreferredStock from time to time in one or more series, and with respect to each seriesof the Preferred Stock, to fix and state by the resolution or resolutions fromtime to time adopted providing for the issuance thereof the following:

 

(1)                                  whether or not theseries is to have voting rights, full, special or limited, or is to be withoutvoting rights, and whether or not such series is to be entitled to vote as aseparate class either alone or together with the holders of one or more otherclasses or series of stock;

 

(2)                                  the number of sharesto constitute the series and the designations thereof;

 

(3)                                  the preferences andrelative, participating, optional, or other special rights, if any, and thequalifications, limitations or restrictions thereof, if any, with respect toany series;

 

(4)                                  whether or not theshares of any series shall be redeemable at the option of the Corporation orthe holders thereof or upon the happening of any specified event, and, ifredeemable, the redemption price or prices (which may be payable in the form ofcash, notes, securities or other property), and the time or times at which andthe terms and conditions upon which such shares shall be redeemable and themanner of redemption;

 

(5)                                  whether or not theshares of a series shall be subject to the operation of retirement or sinkingfunds to be applied to the purchase or redemption of such shares forretirement, and, if such retirement or sinking fund or funds are to be 

 

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established, the periodic amount thereof, and the terms and provisionsrelative to the operation thereof;

 

(6)                                  the dividend rate,whether dividends are payable in cash, stock of the Corporation or otherproperty, the conditions upon which and the times when such dividends arepayable, the preference to or the relation to the payment of dividends payableon any other class or classes or series of stock, whether or not such dividendsshall be cumulative or noncumulative, and if cumulative, the date or dates fromwhich such dividends shall accumulate;

 

(7)                                  the preferences, ifany, and the amounts thereof which the holders of any series thereof shall beentitled to receive upon the voluntary or involuntary dissolution of, or uponany distribution of the assets of, the Corporation;

 

(8)                                  whether or not theshares of any series, at the option of the Corporation or the holder thereof orupon the happening of any specified event, shall be convertible into orexchangeable for the shares of any other class or classes or of any otherseries of the same or any other class or classes of stock, securities or otherproperty of the Corporation and the conversion price or prices or ratio orratios or the rate or rates at which such conversion or exchange may be made,with such adjustments, if any, as shall be stated and expressed or provided forin such resolution or resolutions; and

 

(9)                                  any other specialrights and protective provisions with respect to any series that the Board ofDirectors may deem advisable.

 

(iii)                               *Separate Series; Increase or Decrease in Authorized Shares*.  The shares of each series of Preferred Stockmay vary from the shares of any other series thereof in any or all of theforegoing respects and in any other manner. The Board of Directors may increase the number of shares of PreferredStock designated for any existing series by a resolution adding to such seriesauthorized and unissued shares of Preferred Stock not designated for any otherseries.  Unless otherwise provided in thePreferred Stock Designation, the Board of Directors may decrease the number ofshares of Preferred Stock designated for any existing series by a resolutionsubtracting from such series authorized and unissued shares of Preferred Stockdesignated for such existing series, and the shares so subtracted shall becomeauthorized, unissued and undesignated shares of Preferred Stock.

 

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(d)                                 *General*.

 

(i)                                     Subject to theforegoing provisions of this Certificate of Incorporation, the Corporation mayissue shares of Preferred Stock and Common Stock from time to time for suchconsideration (not less than the par value thereof) as may be fixed by theBoard of Directors, which is expressly authorized to fix the same in itsabsolute discretion.  Shares so issuedfor which the consideration shall have been paid or delivered to theCorporation shall be deemed fully paid stock and shall not be liable to anyfurther call or assessment thereon, and the holders of such shares shall not beliable for any further payments in respect of such shares.

 

(ii)                                  Subject to theprovisions of this Certificate of Incorporation, the Corporation shall haveauthority to create and issue rights and options entitling their holders topurchase shares of the capital stock of the Corporation of any class or seriesor other securities of the Corporation, and such rights and options shall beevidenced by instrument approved by the Board of Directors.  The Board of Directors shall be empowered toset the exercise price, duration, times for exercise and other terms of suchrights or options.

 

(iii)                               No stockholder of theCorporation shall by reason of his or her holding shares of any class ofcapital stock of the Corporation have any preemptive or preferential right toacquire or subscribe for any additional, unissued or treasury shares (whethernow or hereafter acquired) of any class of capital stock of the Corporation nowor hereafter to be authorized, or any notes, debentures, bonds or othersecurities convertible into or carrying any right, option or warrant tosubscribe for or acquire shares of any class of capital stock of theCorporation now or hereafter to be authorized, whether or not the issuance ofany such shares or such notes, debentures, bonds or other securities wouldadversely affect the dividends or voting or other rights of that stockholder.

 

(iv)                              Cumulativevoting of shares of any capital stock having voting rights shall not bepermitted.

 
| **FIFTH.** |   | The name and mailing address of the  incorporator is Roger A. Crabb, c/o Scheef & Stone, LLP, 5956 Sherry  Lane, #1400, Dallas, Texas 75225.                                                                                                                                                                                                                                                                                                                                                                    |
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| **SIXTH.** |   | The Board of Directors is authorized to  adopt, amend or repeal bylaws of the Corporation (“Bylaws”), provided that  the power of the Board of Directors to adopt, amend or repeal Bylaws may be  limited by an amendment to the Bylaws adopted by the holders of Common Stock  that provides that a particular Bylaw or Bylaws may only be adopted, amended  or repealed by the holders of Common Stock. The Corporation may, in its  Bylaws or otherwise, impose restrictions on the transfer of its shares. |

 

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| **SEVENTH.** |   | Elections of directors need not be by  written ballot except and to the extent provided in the Bylaws. |
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| **EIGHTH.**  |   |                                                                                                   |

 

(a)   The number of directorsof the Corporation shall be not less than three, the exact number of which andthe method by which the directors shall be elected shall be as set forth in theBylaws.

 

(b)   Any vacancies on theBoard of Directors shall be filled by the holders of Common Stock or bydirectors elected by the holders of Common Stock in the manner provided for inthe Bylaws.

 

(c)   Any director or theentire Board of Directors may be removed, with or without cause, by the holdersof a majority of the voting power of the outstanding shares of the CommonStock. 

 
| **NINTH.** |   | A director of the Corporation shall not be  liable to the Corporation or its stockholders for monetary damages for breach  of fiduciary duty as a director, except to the extent that such exemption  from liability or limitation thereof is not permitted under the DGCL as  currently in effect or as the same may hereafter be amended. If the DGCL is  hereafter amended to eliminate or limit further the liability of a director,  then, in addition to the elimination and limitation of liability provided by  the preceding sentence, the liability of each director shall be eliminated or  limited to the fullest extent permitted by the DGCL as so amended. Any  amendment, modification or repeal of this Article Ninth shall be  prospective only and shall not adversely affect any right or protection of a  director of the Corporation that exists at the time of such amendment,  modification or repeal.                                                           |
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| **TENTH.** |   | The Corporation shall indemnify and hold  harmless, including the advancement of expenses, to the fullest extent  permitted by applicable law as it presently exists or may hereafter be  amended, and in accordance with the Bylaws, any 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, 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, including service with respect to employee benefit plans  maintained or sponsored by the Corporation (a “Covered Person”) (including |

 

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|   |   | the heirs, executors, administrators and  estate of such Covered Person), against all liability and loss suffered and  expenses (including attorneys’ fees) reasonably incurred by such Covered  Person. The Corporation may, to the extent authorized from time to time by  the Board, grant rights to indemnification and to the advancement of expenses  to any employee or agent of the Corporation to the fullest extent of the  provisions of this Article Tenth with respect to the indemnification and  advancement of expenses of directors and officers of the Corporation. Without  limiting the generality or the effect of the foregoing, the Corporation may  enter into one or more agreements with any person that provide for  indemnification greater or different than that provided in this Article Tenth.  No amendment or repeal of this Article Tenth shall adversely affect any  right or protection existing hereunder or pursuant hereto immediately prior  to such amendment or repeal. |
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IN WITNESSWHEREOF, I have signed this Certificate of Incorporation this 9th dayof November, 2005. 

 

 
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|     | Roger A. Crabb |
| * * | *Incorporator* |

 

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