SIXTH AMENDED AND RESTATED

                          CERTIFICATE OF INCORPORATION

                                       OF

                            COMBINATORX, INCORPORATED

                             a Delaware Corporation

 

 

CombinatoRx, Incorporated, a corporation organized and existing under the laws

of the State of Delaware (the "Corporation"), does hereby submit this Sixth

Amended and Restated Certificate of Incorporation, duly adopted pursuant to

Sections 242 and 245 of the General Corporation Law of the State of Delaware,

for the purpose of amending and restating the Fifth Amended and Restated

Certificate of Incorporation of the Corporation, as filed with the Secretary of

State of the State of Delaware on October 3, 2005. The Corporation's original

Certificate of Incorporation was filed with the Secretary of State of Delaware

on March 28, 2000. The text of the Fifth Amended and Restated Certificate of

Incorporation is hereby restated and amended to read in its entirety as follows:

 

                                   ARTICLE I

 

     The name of this corporation is CombinatoRx, Incorporated.

 

                                   ARTICLE II

 

     The nature of the business and the purposes to be conducted and promoted by

the Corporation shall be to conduct any lawful business, to promote any lawful

purpose, and to engage in any lawful act or activity for which corporations may

be organized under the General Corporation Law of the State of Delaware (the

"DGCL").

 

                                  ARTICLE III

 

     A. CLASSES OF STOCK. This corporation is authorized to issue 65,000,000

shares. 60,000,000 shares shall be Common Stock with a par value of $0.001 per

share ("Common Stock") and 5,000,000 shares shall be Preferred Stock with a par

value of $0.001 per share ("Preferred Stock").

 

     B. RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF PREFERRED STOCK.

Preferred  Stock may be issued from time to time in one or more series,  each of

such  series  to have  such  terms as  stated  or  expressed  herein  and in the

resolution or resolutions  providing for the issue of such series adopted by the

Board of Directors of the Corporation  (the "Board of Directors") as hereinafter

provided.  Any shares of  Preferred  Stock that may be  redeemed,  purchased  or

acquired by the Corporation may be reissued except as otherwise  provided by law

or this Certificate of Incorporation.  Different series of Preferred Stock shall

not be construed to constitute  different  classes of shares for the purposes of

voting by classes  unless  expressly  provided in the  resolution or resolutions

providing  for the issue of such  series  adopted by the Board of  Directors  as

hereinafter provided.

 

 

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     Authority is hereby expressly granted to the Board of Directors from time

to time to issue the Preferred Stock in one or more series, and in connection

with the creation of any such series, by resolution or resolutions providing for

the issue of the shares thereof, to determine and fix such voting powers, full

or limited, or no voting powers, and such designations, preferences and relative

participating, optional or other special rights, and qualifications, limitations

or restrictions thereof, including without limitation thereof, dividend rights,

conversion rights, redemption privileges and liquidation preferences, as shall

be stated and expressed in such resolutions, all to the full extent now or

hereafter permitted by the DGCL. Without limiting the generality of the

foregoing, the resolutions providing for issuance of any series of Preferred

Stock may provide that such series shall be superior or rank equally or be

junior to the Preferred Stock of any other series to the extent permitted by law

and this Certificate of Incorporation. Except as otherwise provided in this

Certificate of Incorporation, no vote of the holders of the Preferred Stock or

Common Stock shall be a prerequisite to the designation or issuance of any

shares of any series of the Preferred Stock authorized by and complying with the

conditions of this Certificate of Incorporation, the right to have such vote

being expressly waived by all present and future holders of the capital stock of

the Corporation.

 

     C. COMMON STOCK. The voting, dividend and liquidation rights of the holders

of the Common Stock are subject to and qualified by the rights of the holders of

the Preferred Stock of any series as may be designated by the Board of Directors

upon issuance of any such Preferred Stock. The holders of the Common Stock shall

have no preemptive rights to subscribe for any shares of any class of stock of

the Corporation whether now or hereafter authorized.

 

          1. DIVIDEND RIGHTS. Dividends may be declared and paid on the Common

     Stock from funds lawfully available therefor as and when determined by the

     Board of Directors and subject to any preferential dividend rights of any

     then outstanding Preferred Stock.

 

          2. LIQUIDATION RIGHTS. Upon the dissolution or liquidation of the

     Corporation, whether voluntary or involuntary, holders of Common Stock will

     be entitled to receive all assets of the Corporation available for

     distribution to its stockholders, subject to any preferential rights of any

     then outstanding Preferred Stock.

 

          3. REDEMPTION. The Common Stock is not redeemable.

 

          4. VOTING RIGHTS. Each share of Common Stock shall be entitled to one

     vote. There shall be no cumulative voting.

 

          5. NUMBER. The number of authorized shares of Common Stock may be

     increased or decreased (but not below the number of shares thereof then

     outstanding) by the affirmative vote of the holders of a majority of the

     stock of the Corporation entitled to vote, irrespective of the provisions

     of Section 242(b)(2) of the DGCL.

 

                                   ARTICLE IV

 

     The corporation is to have perpetual existence.

 

 

                                      -2-

 

 

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                                   ARTICLE V

 

     Except to the extent that the DGCL prohibits the elimination or limitation

of liability of directors for breaches of fiduciary duty, no director of the

Corporation shall be personally liable to the Corporation or its stockholders

for monetary damages for any breach of fiduciary duty as a director,

notwithstanding any provision of law imposing such liability. No amendment to or

repeal of this provision shall apply to or have any effect on the liability or

alleged liability of any director of the Corporation or with respect to any acts

or omissions of such director occurring prior to such amendment or repeal.

 

                                   ARTICLE VI

 

     The corporation shall, to the fullest extent permitted by the provisions of

Section 145 of the General Corporation Law of the State of Delaware, as the same

may be amended and supplemented, indemnify any and all persons whom it shall

have power to indemnify under said Section from and against any and all of the

expenses, liabilities, or other matters referred to in or covered by said

section, and the indemnification provided for herein shall not be deemed

exclusive of any other rights to which those indemnified may be entitled under

any Bylaw, agreement, vote of stockholders or disinterested directors or

otherwise, both as to action in his official capacity and as to action in

another capacity while holding such office, and shall continue as to a person

who has ceased to be a director, officer, employee, or agent and shall inure to

the benefit of the heirs, executors, and administrators of such person.

 

                                  ARTICLE VII

 

     A. INDEMNIFICATION. The Corporation shall, to the maximum extent permitted

under the DGCL and except as set forth below, indemnify and upon request advance

expenses to each person who was or is a party or is threatened to be made a

party to any threatened, pending or completed action, suit or proceeding,

whether civil, criminal, administrative or investigative, by reason of the fact

that he is or was, or has agreed to become, a director or officer of the

Corporation, or is or was serving, or has agreed to serve, at the request of the

Corporation, as a director, officer, employee or trustee of, or in a similar

capacity with, another corporation, partnership, joint venture, trust or other

enterprise, including any employee benefit plan (all such persons being referred

to hereafter as an "Indemnitee"), or by reason of any action alleged to have

been taken or omitted in such capacity, against all expenses (including

attorneys' fees), judgments, fines and amounts paid in settlement actually and

reasonably incurred by him or on his behalf in connection with such action, suit

or proceeding and any appeal therefrom, if he acted in good faith and in a

manner he reasonably believed to be in, or not opposed to, the best interests of

the Corporation, and, with respect to any criminal action or proceeding, had no

reasonable cause to believe his conduct was unlawful. Notwithstanding anything

to the contrary in this Article, the Corporation shall not indemnify an

Indemnitee seeking indemnification in connection with any action, suit,

proceeding, claim or counterclaim, or part thereof, initiated by the Indemnitee

unless the initiation thereof was approved by the Board of Directors.

 

     B. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any indemnification

under Paragraph A of this Article (unless ordered by a court) shall be made by

the Corporation only as authorized in the specific case upon a determination

that indemnification is proper in the circumstances because such person has

either met the applicable standard of conduct set forth in

 

 

                                      -3-

 

 

<PAGE>

 

 

 

this Article and that the amount requested has been actually and reasonably

incurred. Such determination shall be made:

 

          1. by a majority vote of the directors who are not parties to such

     action, suit or proceeding, even though less than a quorum; or

 

          2. by a committee of such directors designated by a majority vote of

     such directors, even though less than a quorum; or

 

          3. if there are no such directors, or if such directors so direct, by

     independent legal counsel in a written opinion; or

 

          4. by the holders of the Common Stock.

 

     C. ADVANCE OF EXPENSES. Notwithstanding any other provisions of this

Certificate of Incorporation, the By-Laws of the Corporation, or any agreement,

vote of stockholders or disinterested directors, or arrangement to the contrary,

the Corporation may advance payment of expenses incurred by an Indemnitee in

advance of the final disposition of any matter only to the extent such advance

is not prohibited by applicable law, and then only upon receipt of an

undertaking by or on behalf of the Indemnitee to repay all amounts so advanced

in the event that it shall ultimately be determined that the Indemnitee is not

entitled to be indemnified by the Corporation as authorized in this Article.

Such undertaking may be accepted without reference to the financial ability of

the Indemnitee to make such repayment.

 

     D. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this

Article or of the relevant provisions of the DGCL or any other applicable laws

shall affect or diminish in any way the rights of any Indemnitee to

indemnification under the provisions hereof with respect to any action, suit,

proceeding or investigation arising out of or relating to any actions,

transactions or facts occurring prior to the final adoption of such amendment,

termination or repeal.

 

     E. OTHER RIGHTS. This corporation may, to the extent authorized from time

to time by its Board of Directors, grant indemnification rights to other

employees or agents of the Corporation or other persons serving the Corporation

and such rights may be equivalent to, or greater or less than, those set forth

in this Article.

 

     F. MERGER OR CONSOLIDATION. If the Corporation is merged into or

consolidated with another corporation and the Corporation is not the surviving

corporation, the surviving corporation shall assume the obligations of the

Corporation under this Article with respect to any action, suit, proceeding or

investigation arising out of or relating to any actions, transactions or facts

occurring prior to the date of such merger or consolidation.

 

     G. SAVINGS CLAUSE. If this Article or any portion hereof shall be

invalidated on any ground by any court of competent jurisdiction, then the

Corporation shall nevertheless indemnify each Indemnitee as to any expenses,

including attorneys' fees, judgments, fines and amounts paid in settlement in

connection with any action, suit, proceeding or investigation, whether civil,

criminal or administrative, including an action by or in the right of the

Corporation, to the fullest

 

 

                                      -4-

 

 

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extent permitted by any applicable portion of this Article that shall not have

been invalidated and to the fullest extent permitted by applicable law.

 

     H. SCOPE OF ARTICLE. Indemnification and advancement of expenses, as

authorized by the preceding provisions of this Article, shall not be deemed

exclusive of any other rights to which those seeking indemnification or

advancement of expenses may be entitled under any agreement, vote of

stockholders or disinterested directors or otherwise, both as to action in an

official capacity and as to action in another capacity while holding such

office. The indemnification and advancement of expenses provided by or granted

pursuant to this Article shall, unless otherwise provided when authorized or

ratified, continue as to a person who has ceased to be an authorized

representative and shall inure to the benefit of the heirs, executors and

administrators of such a person.

 

     I. INSURANCE. The Corporation may purchase and maintain insurance on behalf

of any person who is or was a director, officer, trustee, employee or agent of

the Corporation, or is or was serving at the request of the Corporation as a

director, officer, trustee, employee or agent of another corporation,

partnership, joint venture, trust or other enterprise against any liability

asserted against the person and incurred by the person in any such capacity, or

arising out of his or her status as such, whether or not the Corporation would

have the power or the obligation to indemnify such person against such liability

under the provisions of this Article.

 

                                  ARTICLE VIII

 

     The Corporation reserves the right to amend, alter, change or repeal any

provision contained in this Certificate of Incorporation, in the manner now or

hereafter prescribed by statute and this Certificate of Incorporation, and all

rights conferred upon stockholders herein are granted subject to this

reservation.

 

                                   ARTICLE IX

 

     This Article is inserted for the management of the business and for the

conduct of the affairs of the Corporation.

 

     A. NUMBER OF DIRECTORS. The Board of Directors shall consist of one or more

members, each of whom shall be a natural person. The exact number of directors

within the limitations specified in the preceding sentence shall be fixed from

time to time by, or in the manner provided in, the By-Laws of the Corporation.

 

     B. CLASSES OF DIRECTORS. The Board of Directors shall be and is divided

into three classes: Class I, Class II and Class III. No one class shall have

more than one director more than any other class. If a fraction is contained in

the quotient arrived at by dividing the designated number of directors by three,

then, if such fraction is one-third, the extra director shall be a member of

Class III, and if such fraction is two-thirds, one of the extra directors shall

be a member of Class III and one of the extra directors shall be a member of

Class II, unless otherwise provided from time to time by resolution adopted by

the Board of Directors.

 

     C. ELECTION OF DIRECTORS. Elections of directors need not be by written

ballot except as and to the extent provided in the

By-Laws of the Corporation.

 

 

                                      -5-

 

 

<PAGE>

 

 

     D. TERMS OF OFFICE. Except as provided in Paragraph G of this Article,

each director shall serve for a term ending on the date of the third annual

meeting following the annual meeting at which such director was elected;

PROVIDED, HOWEVER, that each initial director in Class I shall serve for a

term ending on the date of the annual meeting in 2006; each initial director

in Class II shall serve for a term ending on the date of the annual meeting

in 2007; and each initial director in Class III shall serve for a term ending

on the date of the annual meeting in 2008; and PROVIDED, FURTHER, that the

term of each director shall be subject to the election and qualification  of

his successor and to his earlier death, resignation or removal.

 

     E. ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR

DECREASES IN THE NUMBER OF DIRECTORS. In the event of any increase or decrease

in the authorized number of directors, (i) each director then serving as such

shall nevertheless continue as a director of the class of which he is a member

and (ii) the newly created or eliminated directorships resulting from such

increase or decrease shall be apportioned by the Board of Directors among the

three classes of directors so as to ensure that no one class has more than one

director more than any other class. To the extent possible, consistent with the

foregoing rule, any newly created directorships shall be added to those classes

whose terms of office are to expire at the latest dates following such

allocation, and any newly eliminated directorships shall be subtracted from

those classes whose terms of offices are to expire at the earliest dates

following such allocation, unless otherwise provided from time to time by

resolution adopted by the Board of Directors.

 

     F. REMOVAL. The directors of the Corporation may be removed only for cause

by the affirmative vote of the holders of at least seventy five percent (75%) of

the outstanding shares of capital stock of the Corporation entitled to vote

generally in the election of directors, voting together as a single class, cast

at a meeting of the stockholders called for that purpose.

 

     G. VACANCIES. Any vacancy in the Board of Directors, however occurring, and

any newly created directorship resulting from an enlargement of the Board, shall

be filled only by vote of a majority of the directors then in office, although

less than a quorum, or by a sole remaining director. A director elected to fill

a vacancy shall be elected for the unexpired term of his predecessor in office,

and a director chosen to fill a position resulting from an increase in the

number of directors shall hold office until the next election of the class for

which such director shall have been chosen, subject to the election and

qualification of his successor and to his earlier death, resignation or removal.

 

     H. STOCKHOLDER NOMINATIONS AND INTRODUCTION OF BUSINESS, ETC. Advance

notice of stockholder nominations for election of directors and other business

to be brought by stockholders before either an annual or special meeting of

stockholders shall be given in the manner provided by the By-Laws of the

Corporation.

 

     I. AMENDMENT TO ARTICLE. Notwithstanding any other provisions of law, this

Certificate of Incorporation or the By-Laws, each as amended, and

notwithstanding the fact that a lesser percentage may be specified by law, this

Certificate of Incorporation or the By-Laws of the Corporation, the affirmative

vote of at least seventy five percent (75%) of the outstanding shares of capital

stock of the Corporation entitled to vote generally in the election of

directors, voting together as a single class, shall be required to amend or

repeal, or to adopt any provisions inconsistent with the purpose or intent of

this Article IX.

 

 

                                      -6-

 

 

<PAGE>

 

 

 

                                   ARTICLE X

 

     Except as otherwise provided in the By-Laws, the stockholders of the

Corporation and the Board of Directors may hold their meetings and have an

office or offices outside of the State of Delaware and, subject to the

provisions of the laws of said State, may keep the books of the corporation

outside of said State at such places as may, from time to time, be designated by

the Board of Directors or by the By-Laws of the Corporation.

 

                                   ARTICLE XI

 

     At any time during which a class of capital stock of the Corporation is

registered under Section 12 of the Securities Exchange Act of 1934 or any

similar successor statute, stockholders of the Corporation may not take any

action by written consent in lieu of a meeting. Notwithstanding any other

provisions of law, this Certificate of Incorporation or the By-Laws, each as

amended, and notwithstanding the fact that a lesser percentage may be specified

by law, this Certificate of Incorporation or the By-Laws of the Corporation, the

affirmative vote of at least seventy five percent (75%) of the outstanding

shares of capital stock of the Corporation entitled to vote generally in the

election of directors, voting together as a single class, shall be required to

amend or repeal or to adopt any provisions inconsistent with the purpose or

intent of this Article XI.

 

                                  ARTICLE XII

 

     Special meetings of stockholders may be called at any time only by the

Chairman of the Board of Directors, the Chief Executive Officer (or if there is

no Chief Executive Officer, the President) or the Board of Directors. Any

business transacted at any special meeting of stockholders shall be limited to

matters relating to the purpose or purposes stated in the notice of meeting.

Notwithstanding any other provisions of law, this Certificate of Incorporation

or the By-Laws, each as amended, and notwithstanding the fact that a lesser

percentage may be specified by law, this Certificate of Incorporation or the

By-Laws of the Corporation, the affirmative vote of at least seventy five

percent (75%) of the outstanding shares of capital stock of the Corporation

entitled to vote generally in the election of directors, voting together as a

single class, shall be required to amend or repeal or to adopt any provisions

inconsistent with the purpose or intent of this Article XII.

 

                                  ARTICLE XIII

 

     The registered office of the corporation in the State of Delaware is

Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New

Castle. The name of its registered agent at such office is The Corporation Trust

Company.

 

 

 

 

                                      -7-

 

 

<PAGE>

 

 

 

         IN WITNESS  WHEREOF,  the Corporation has caused this Sixth Amended and

Restated  Certificate of  Incorporation  to be signed by its President and Chief

Executive Officer on this ___ day of ____________, 2005.

 

                                     COMBINATORX, INCORPORATED

 

 

 

                                     By:______________________________

                                        Alexis Borisy

                                        President and Chief Executive Officer

 

 

 

 

 

CERTIFICATE OF AMENDMENT OF

SIXTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF

ZALICUS INC.

     Zalicus Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

1. The name of the Corporation is Zalicus Inc. The date of the filing of the Corporation’s original

Certificate of Incorporation with the Secretary of State of the State of Delaware was March 28, 2000.

     2. This Certificate of Amendment amends certain provisions of the Corporation’s Sixth Amended and Restated Certificate of Incorporation, as amended, and has been duly adopted by the Board of Directors of the Corporation acting in accordance with the provisions of Section 242 of the DGCL, and further adopted in accordance with the provisions of Sections 211 and 242 of the DGCL by the stockholders of the Corporation.

3. That this Certificate of Amendment shall become effective at 12:01 AM (Eastern Time) on

October 3, 2013.

4. That upon the effectiveness of this Certificate of Amendment, Article III of the Corporation’s

Sixth Amended and Restated Certificate of Incorporation, as amended, is hereby amended by adding the following paragraph at the beginning of Article III:

“As of 12:01 AM (Eastern Time) on October 3, 2013 (the “Effective Time”), every six issued and outstanding shares of this corporation’s Common Stock (as defined below and including each share of treasury stock, the “Pre-Split Common Stock”) shall automatically and without any action on the part of the holder thereof be reclassified as and reduced to one share of Common Stock (such reduction of shares designated as the “Reverse Stock Split”). The number of shares of Common Stock and Preferred Stock (as defined below) that this corporation is authorized to issue shall not be affected by the Reverse Stock Split. The par value of this corporation’s Common Stock following the Reverse Stock Split shall be $0.001 per share. No fractional shares will be issued in connection with the Reverse Stock Split. Each holder of Pre-Split Common Stock at the Effective Time who would otherwise be entitled to a fractional share shall, in lieu thereof, receive a cash payment equal to the fractional share multiplied by (i) the closing price per share of the Common Stock as reported on the NASDAQ Global Market or the NASDAQ Capital Market, as applicable, on the last trading day preceding the date of the Effective Time or (ii) if the Common Stock is not then listed on the NASDAQ Global Market or the NASDAQ Capital Market, the fair market value of the Common Stock as determined by this corporation’s Board of Directors.”

     IN WITNESS WHEREOF, Zalicus Inc. has caused this Certificate of Amendment to be executed this 2nd day of October, 2013.

ZALICUS INC.

 

By: /s/ Mark H. N. Corrigan. M.D.
Name: Mark H. N. Corrigan, M.D.
Title: President and Chief Executive Officer

 

[As Filed: 10-02-2013]