Exhibit
3.1





RESTATED


CERTIFICATE
OF INCORPORATION


OF


BANYAN
RAIL SERVICES INC.





ARTICLE
FIRST:       The name of the Corporation is Banyan
Rail Services Inc.





ARTICLE
SECOND:  The address of 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 address is The Corporation Trust Company.





ARTICLE
THIRD:      (a)      Authorized Capital
Stock.  The aggregate number of shares of all classes of stock
that the Corporation is authorized to issue is 76,000,000 shares, consisting
of:





(i)      
75,000,000 shares of common stock, par value $0.01 per share (collectively, the
“Common Stock”); and





(ii)     
1,000,000 shares of serial preferred stock, par value $0.01 per share
(collectively, the “Preferred Stock”).





(b)      
Common
Stock.





(i) Powers, Preferences and
Rights.  Except as may otherwise be provided by this
Certificate of Incorporation, as may be amended from time to time by resolutions
of the Board of Directors designating a class or series of Preferred Stock
pursuant to Section 3(c) hereof (this “Certificate of Incorporation”), or by the
Delaware General Corporation Law, the powers, preferences and rights of the
Common Stock, and the qualifications, limitations or restrictions thereof, shall
be in all respects identical.





(ii) Voting
Rights.  Except as may otherwise be provided by this
Certificate of Incorporation or by the Delaware General Corporation Law, (A) all
rights to vote and all voting power shall be vested exclusively in the holders
of the Common Stock and (B) each holder of Common Stock shall be entitled
to one vote for each share held of record on the applicable record date on all
matters presented for a vote of the stockholders of the Corporation, including,
without limitation, the election of directors.





(iii) Dividends.  Except
as may otherwise be provided by this Certificate of Incorporation or by the
Delaware General Corporation Law, if, as and when dividends on the Common Stock
are declared payable from time to time by the Board of Directors out of funds
legally available therefor as provided in this Section 3(b)(iii), whether
payable in cash, property, stock or other securities, the holders of Common
Stock shall be entitled to share equally, on a per share basis, in such
dividends.





(iv) Liquidating
Distributions.  Upon any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, or upon any sale or
conveyance of all or substantially all of the assets of the Corporation, after
payment or provision for payment of all the liabilities of the Corporation and
the expenses of liquidation, and after the holders of the Preferred Stock shall
have been paid in full the amounts, if any, to which they are entitled or a sum
sufficient for such payment in full shall have been set aside, the remaining
assets of the Corporation available for distribution shall be distributed
ratably to the holders of the Common Stock in accordance with their respective
rights and interests.  For the purpose of this Section 3(b)(iv),
a merger, consolidation, sale or conveyance shall not be deemed to be a
liquidation or winding up of the Corporation unless the transaction provides for
the cessation of the business of the Corporation.





(c)           Preferred
Stock.





(i) Designations by Board of
Directors.  The Preferred Stock may be issued from time to time
in one or more classes or series with such voting rights, full or limited, or
without voting rights, and with such designations, preferences and relative,
participating, optional or special rights, and qualifications, limitations or
restrictions as are stated herein and as shall be stated and expressed in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors as hereinafter prescribed.





(ii) Terms of the Preferred
Stock.  Subject to the rights of the holders of the Common
Stock, authority is hereby expressly granted to and vested in the Board of
Directors or any designated committee thereof to authorize the issuance of the
Preferred Stock from time to time in one or more classes or series, to determine
and take necessary proceedings to fully effectuate the issuance and redemption
of any such Preferred Stock and, with respect to each class or series of
Preferred Stock, to fix and state from time to time, by resolution or
resolutions providing for the issuance thereof, the
following:





(A) the
number of shares to constitute the class or series and the designations
thereof;





(B) whether
the class or series is to have voting rights, full or limited, or to be without
voting rights;





(C) the
preferences and relative, participating, optional or special rights, if any, and
qualifications, limitations or restrictions thereof, if any, of the class or
series;





(D) whether
the shares of the class or series will be redeemable and, if redeemable, the
redemption price or prices and the time or times at which, and the terms and
conditions upon which, such shares will be redeemable and the manner of
redemption;


2


(E) whether
the shares of the class or series will be subject to the operation of retirement
or sinking funds to be applied to the purchase or redemption of such shares for
retirement and, if such retirement or sinking funds are to be established, the
annual amount thereof and the terms and conditions relative to the operation
thereof;





(F) the
dividend rate, whether dividends are payable in cash, stock or otherwise, the
conditions upon which and the times when such dividends are payable, the
preference or relation to the payment of dividends on any other class or series
of stock, whether or not such dividends will be cumulative or noncumulative and,
if cumulative, the date or dates from which such dividends will
accumulate;





(G) the
preferences, if any, and the amounts thereof that the holders of the class or
series will be entitled to receive upon the voluntary or involuntary
dissolution, liquidation or winding up of, or upon any distribution of the
assets of, the Corporation;





(H) whether
the shares of the class or series will be convertible into, or exchangeable for,
the shares of any other class or classes, or of any other series of the same or
any other class or classes, of stock of the Corporation and the conversion price
or prices, or ratio or ratios, or rate or rates, at which such conversion or
exchange may be made, with such adjustments, if any, as shall be expressed or
provided for in such resolution or resolutions; and





(I) such
other special rights and protective provisions with respect to the class or
series as the Board of Directors or any designated committee thereof may deem
advisable.





The
shares of each class or series of Preferred Stock may vary from the shares of
any other class or series thereof in any or all of the foregoing
respects.  The Board of Directors or any designated committee thereof
may from time to time increase the number of shares of Preferred Stock
designated for any existing class or series by a resolution adding to such class
or series authorized but unissued shares of Preferred Stock not designated for
any other class or series thereof.  The Board of Directors or any
designated committee thereof may from time to time decrease the number of shares
of Preferred Stock designated for any existing class or series by a resolution
subtracting from such class or series any unissued shares of Preferred Stock
designated for such class or series, and the shares so subtracted shall become
authorized, unissued and undesignated shares of Preferred
Stock.


3


(d)      Reverse Stock Split.
 Each outstanding share of Common Stock as of April 2, 2010 (the “Split
Date”) shall be exchanged for 1/10 of a share of Common Stock. Each certificate
that prior to the Split Date represented shares of Common Stock shall then
represent the number of shares of Common Stock into which such shares are split
hereby; provided, however, that each person holding of record a stock
certificate or certificates that prior to the Split Date represented shares of
Common Stock shall receive, upon surrender of each such certificate or
certificates, a new certificate or certificates representing the number of
shares of Common Stock to which such person is entitled.  No new
certificates representing fractional shares will be issued.  Instead,
each share of stock that would otherwise be converted into fractional shares as
a result of the stock split will be rounded to the nearest whole
share.





ARTICLE
FOURTH:    (a)      The nature of
the business to be conducted or promoted and the purposes of the Corporation are
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.





(b)     
Each holder of Shares of any class of stock of the Corporation shall upon demand
disclose to the Board of Directors in writing such information with respect to
direct and indirect ownership of such Shares as the Board of Directors deems
necessary to enforce the provisions of this Article Fourth.





(c)     
Whenever it is deemed by the Board of Directors to be reasonably necessary to
protect the Corporation from a possible limitation on its net operating loss
carry forwards or built in losses (collectively, “NOLS”) under Section 382 of
the Internal Revenue Code of 1986, as amended (the “Code”), any regulation
thereunder or any replacement or similar provision of any federal or state tax
law or regulation, the Board of Directors may require a statement or affidavit
from each proposed transferee of Shares of any class of stock of the Corporation
setting forth the number of Shares of all classes of stock of the Corporation
already owned, or treated as owned under Section 382 of the Code, by such
proposed transferee in a form specified by the Board of Directors, and, in
connection therewith, if the proposed transfer may result in a limitation on the
use of, or a loss of, any NOLs, the Board of Directors shall have the right, but
not the duty, to cause the Corporation to refuse to transfer such Shares to the
proposed transferee. All contracts for the sale or other transfer of Shares
shall be subject to the provisions of Article Fourth. For purposes of this
Article Fourth, the term “Shares” includes any option, contingent purchase
right, warrant, convertible debt instrument, put, contract or similar interest
or instrument with respect to Shares.





(d)     
Notwithstanding any other provision of this Certificate of Incorporation to the
contrary, and subject to the provisions of subsection 4(d), there shall be a
limit on the number of Shares of capital stock of the Corporation owned by any
stockholder of the Corporation as set forth in the following sentence, such
limitation herein referred to as the “Limit.”  No person or entity
shall at any time directly or indirectly acquire any Shares of any class of
stock of the Corporation which could cause such person or entity (1) to be
treated as a “5-percent shareholder” within the meaning of Section 382 of the
Code, (2) to be treated as a holder of capital stock of the Corporation in an
amount that could otherwise result in a limitation on the use of, or loss of,
the Corporation’s NOLs, or (3) to be the beneficial owner (as such term is
defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended or any successor or replacement rule) of more than 4.5% of the
outstanding Shares of capital stock of the Corporation.  Shares of any
class of stock of the Corporation which are proposed to be acquired by a person
in excess of the Limit at any time shall be deemed “Excess
Shares.”


4


(i)     
Any contract for the sale or other transfer of Shares of any class of stock of
the Corporation which would, if consummated, result in a transferee owning
Excess Shares, and any transfer of Shares of any class of stock of the
Corporation which would result in a transferee owning Excess Shares shall, as to
the Excess Shares, be null and void and be deemed an acquisition by such
transferee of such Excess Shares for the account of the Corporation. All Excess
Shares held by such transferee for the account of the Corporation shall cease to
be outstanding and shall rinse to be entitled to dividends, voting rights and
other benefits with respect to such Excess Shares, excepting only the holder's
right to payment from the Corporation of the price determined and payable as set
forth below.





(ii)     
Upon receipt of notice of the existence of Excess Shares, the Corporation, at
the direction of the Board of Directors, by notice to the holder thereof, may
demand that the holder deliver the Excess Shares to the Corporation. Upon
issuance of such demand, the Excess Shares shall be deemed cancelled and the
holder shall be entitled to receive from the Corporation a price determined and
payable as hereinafter set forth. Subject to the limitation on payment set forth
below, the price of each Excess Share called for delivery shall be the average
daily per share closing sales price if the class of stock of the Corporation
comprising the Excess Share is listed on a national securities exchange, or on
the National Association of Securities Dealers Inc. Automated Quotation system
or any similar or successor system and if such class of stock is not so listed,
shall be the mean between the average published per share closing bid and asked
prices, in each case during the thirty day calendar period ending on the
business day prior to receipt by the holder of the notice for delivery, or if
there have been no sales on a national securities exchange or such system and no
published bid and asked quotations with respect to such class of stock of the
Corporation during such thirty-day calendar period, the price shall be the price
determined by the Board of Directors in good faith.





(iii)     
Unless the Board of Directors shall determine that it is in the interest of the
Corporation to make earlier payment of all of the amount determined as the price
per share in accordance with subsection 4(e)(ii), the price shall be payable
only upon the liquidation of the Corporation and shall not exceed an amount
which is the sum of the per share distributions designated as liquidation
distributions and return of capital distributions declared with respect to other
Shares of the Corporation of the same class or series, and no interest shall
accrue with respect to the period subsequent to the issuance by the Corporation
of the demand to the date of such payment.





(e)     
The Board of Directors in their discretion may exempt from the Limit (i)
ownership of certain designated Shares while owned by a person or entity who has
provided the Board of Directors with evidence and assurance acceptable to the
Board of Directors that no NOLs of the Corporation would be lost or limited
thereby, or (ii) any other ownership if the Board of Directors determine that
such exception is in the best interests of the Corporation.


5


(f)           Nothing
contained in the Certificate of Incorporation, or in this Article Fourth shall
limit the authority of the Board of Directors to take such other action as they
deem necessary or advisable to protect the value of the NOLs to the
Corporation.





(g)           If
any provision of this Article Fourth or any application of any such provision is
determined to be invalid by an federal or state court having jurisdiction over
the issue, the validity of the remaining provisions shall not be affected and
other applications of such provisions shall be affected only to the extent
necessary to comply with the determination of such court. To the extent this
Article fourth may be inconsistent with any other provision, this Article Fourth
shall be controlling.





ARTICLE
FIFTH: The name and mailing address of the incorporator is as
follows:





Ms.
      Denise R. Morgan


444
      North Michigan Avenue Suite 2300


Chicago,
      Illinois 60611





ARTICLE
SIXTH:        The following provisions are
inserted for the management of the business and the conduct of the affairs of
the Corporation, and for further definition, limitation and regulation of the
powers of the Corporation and of its Directors and stockholders:





(a)           The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.  The Directors, subject only to
the specific limitations contained in this Certificate and the By-Laws, shall
have, without further or other authorization, free from any power of control on
the part of the Shareholders, full, absolute and exclusive power, control and
authority over the Corporation’s assets and over the business and affairs of the
Corporation to the same extent as if the Directors were the sole owners thereof
in their own right, and to do all such acts and things as in their sole judgment
and discretion are necessary or incidental to, or desirable for, the carrying
out of any of the purposes of the Corporation or conducting the business of the
Corporation.  Any determination made in good faith by the Directors of
the purposes of the Corporation or the existence of any power or authority
hereunder shall be conclusive and each such determination and the basis therefor
shall be set forth in the minutes of meetings of the Directors. In construing
the provisions of this Certificate and the By-Laws, the presumption shall be in
favor of the grant of powers and authority to the Directors. The enumeration of
any specific power or authority herein shall not be construed as limiting the
general powers or authority or any other specified power or authority conferred
herein by statute or rule of law upon the Directors.





(b)           Specific Powers and
Authorities.  Subject only to the express limitations contained
in this Certificate and the By-Laws and in addition to any powers and
authorities conferred by this Certificate and the By-Laws or which the Directors
may have by virtue of any present or future statute or rule of law, the
Directors without any action or consent by the Shareholders shall have and may
exercise, at any time and from time to times, the following powers and
authorities which may or may not be exercised by them in their sole judgment and
discretion, and in such manner, and upon such terms and conditions as they may,
from time to time, deem proper:


6


(1)           To
retain, invest and reinvest the capital or other funds of the Corporation and,
for such consideration as they deem proper, to purchase or otherwise acquire for
cash or other property or through the issuance of Shares or other securities of
the Corporation and hold for investment real or personal property of any kind,
tangible or intangible, in entirety or in participation and to possess and
exercise all the rights, powers and privileges appertaining to the ownership of
the Corporation's assets with respect thereto;





(2)           To
sell, rent, lease, hire, exchange, release, partition, assign, mortgage, pledge,
hypothecate, grant security interest in, encumber, negotiate, convey, transfer
or otherwise dispose of or grant interests in the Corporation’s assets by deeds,
financing statements, security agreements and other instruments, trust deeds,
assignments, bills of sale, transfers, leases or mortgages, for any of such
purposes.  Provided, that any Board resolution authorizing the sale,
lease or exchange of all or substantially all of the Corporation’s assets must
be approved by the holders of a majority of the Shares entitled to vote
thereon;





(3)           To
enter into leases, contracts, obligations, and other agreements for a term
extending beyond the term of office of the Directors and beyond the possible
termination of the Corporation or for a lesser term;





(4)           To
borrow money and give negotiable or non-negotiable instruments therefor; to
guarantee, indemnify or act as surety with respect to payment or performance of
obligations of third parties; to enter into other obligations on behalf of the
Corporation; and to assign, convey, transfer, mortgage, subordinate, pledge,
grant security interests in, encumber or hypothecate the Corporation's assets to
secure any of the foregoing;





(5)           To
lend money, whether secured or unsecured, to any Person, including any person
affiliated with the Corporation or the Advisor;





(6)           To
create reserve funds for any purpose;





(7)           To
incur and pay out of the Corporation’s assets any charges or expenses, and
disburse any funds of the Corporation, which charges, expenses or disbursements
are, in the opinion of the Directors, necessary or incidental to or desirable
for the carrying out of any of the purposes of the Corporation or conducting the
business of the Corporation, including, without limitation, taxes and other
governmental levies, charges and assessments, of whatever kind or nature,
imposed upon or against the Directors in connection with the Corporation or the
Corporation’s assets or upon or against the Corporation's assets or any part
thereof, and for any of the purposes herein;





(8)           To
deposit funds of the Corporation in or with banks, trust companies, savings and
loan associations, money market organizations and other depositories or issuers
of depository-type accounts, whether or not such deposits will draw interest or
be insured, the same to be subject to withdrawal or redemption on such terms and
in such manner and by such person or persons (including any one or more
Directors, officers, agents or representatives) as the Directors may
determine;


7


(9)           To
possess and exercise all the rights, powers and privileges appertaining to the
ownership of all or any mortgages or securities issued or created by, or
interests in, any person, forming part of the Corporation’s assets, to the same
extent that an individual might and, without limiting the generality of the
foregoing, to vote or give consent, request or notice, or waive any notice,
either in person or by proxy or power of attorney, with or without power of
substitution, to one or more persons, which proxies and powers of attorney may
be for meetings or action generally or for any particular meeting or action, and
may include the exercise of discretionary powers;





(10)         To
enter into joint ventures, general or limited partnerships and any other lawful
combinations or associations;





(11)         To
elect or appoint officers of the Corporation (none of whom needs be a Director),
who may be removed or discharged at the discretion of the Directors, such
officers to have such powers and duties, and to serve such terms, as may be
prescribed by the Directors or by the By-Laws of the Corporation, or as may
pertain to such offices;





(12)         [reserved]





(13)         Subject
to the provisions of the By-Laws, to engage or employ any persons as agents,
representatives, employees, or independent contractors (including without
limitation, real estate advisors, investment advisors, transfer agents,
registrars, underwriters, accountants, attorneys at law, real estate agents,
managers, appraisers, brokers, architects, engineers, construction managers,
general contractors or otherwise) in one or more capacities, in connection with
the management of the Corporation’s affairs or otherwise, and to pay
compensation from the Corporation for services in as many capacities as such
person may be so engaged or employed and notwithstanding that any such person
is, or is an Affiliated person of, a Director or officer of the Corporation,
and, except as prohibited by law, to delegate any of the powers and duties of
the Directors to any one or more Directors, agents, representatives, officers,
employees, in-dependent contractors or other persons;


8


(14)         To
determine whether moneys, securities or other assets received by the Corporation
shall be charged or credited to income or capital or allocated between income
and capital, including the power to amortize or fail to amortize any part or all
of any premium or discount, to treat all or any part of the profit resulting
from the maturity or sale of any asset, whether purchased at a premium or at a
discount, as income or capital, or apportion the same between income and
capital, to apportion the sales price of any asset between income and capital,
and to determine in what manner any expenses or disbursements are to be borne as
between income and capital, whether or not in the absence of the power and
authority conferred by this subsection such moneys, securities or other assets
would be regarded as income or as capital or such expense or disbursement would
be charged to income or capital; to treat any dividend or other distribution on
any investment as income or capital or to apportion the same between income and
capital; to provide or fail to provide reserves for depreciation, amortization,
doubtful collection, or obsolescence in respect of all or any part of the
Corporation’s Assets subject to depreciation, amortization, collection, or
obsolescence in such amounts and by such methods as they shall determine; and to
determine the method or form in which the accounts and records of the
Corporation shall be kept and to change from time to time such method or
form;





(15)         To
determine from time to time the value of all or any part of the Corporation’s
Assets and of any services, securities, property or other consideration to be
furnished to or acquired by the Corporation, and from time to time to revalue
all or any part of the Corporation’s Assets in accordance with such valuations
or other information, which valuations or other information may be provided by
the Advisor and/or by other persons retained for the purpose, as the Directors,
in their sole judgment, may deem necessary;





(16)         To
collect, sue for, and receive all sums of money coming due to the Corporation,
and to engage in, intervene in, prosecute, join, defend, compound, compromise,
abandon or adjust, by arbitration or otherwise, any actions, suits, proceedings,
disputes, claims, controversies, demands or other litigation relating to the
Corporation, the Corporation’s Assets or the Corporation’s affairs, to enter
into agreement therefor, whether or not any suit is commenced or claim accrued
or asserted and, in advance of any controversy, to enter into agreements
regarding arbitration, adjudication or settlement thereof;





(17)         To
renew, modify, release, compromise, extend, consolidate, or cancel, in whole or
in part, any obligation to or of the Corporation;





(18)         To
purchase and pay for out of the Corporation’s Assets insurance contracts and
policies insuring the Corporation’s Assets against any and all risks and
insuring the Corporation, the Directors, the shareholders, the officers of the
Corporation, the Advisor or any or all of them, against any and all claims and
liabilities of every nature asserted by any person arising by reason of any
action alleged to have been taken or omitted by the Corporation or by the
Directors, Shareholders, officers, or by the Advisor;


9


(19)         To
cause legal title to any of the Corporation’s Assets to be held by or in the
name of the Corporation or one or more of the Directors or any other person as
the Directors may determine, on such terms and in such manner and with such
powers as are consistent with Section 144 of the Delaware General Corporation
Law, and with disclosure that the Corporation or Directors are interested
therein;





(20)         To
adopt an accounting method for the Corporation, and from time to time change
such accounting method, and to engage a firm of independent certified public
accountants to audit the financial records of the Corporation;





(21)         To
adopt and use a seal (but the use of a seal shall not be required for the
execution of instruments or obligations of the Corporation);





(22)         With
respect to any securities issued by the Corporation, to provide that the same
may be signed by the manual signature of one or more Directors or officers, or
persons who have theretofore been Directors or officers or by the facsimile
signature of any such person (with or without countersignature by a transfer
agent, registrar, authenticating agent or other similar person), and to provide
that ownership of such securities may be conclusively evidenced by the books and
records of the Corporation or any appropriate agent of the Corporation without
the necessity of any certificate, all as determined by the Directors from time
to time to be consistent with normal commercial practices;





(23)         To
declare and pay cash distributions to Shareholders. Specifically, the Directors,
in their discretion, shall declare and pay to Shareholders quarterly
distributions in cash or other property, out of current or accumulated income,
capital, capital gains, principal, surplus, proceeds from the increase or
refinancing of Corporation obligations, from the repayment of loans made by the
Corporation, from the sale of portions of the Corporation’s Assets, or from any
other source as the Directors in their discretion shall determine. Provided, no
such distribution shall impair the capital of the Corporation or otherwise
violate the provisions of the Delaware General Corporation Law. Shareholders
shall have no right to any distribution unless and until declared by the
Directors. The date for determining the Shareholders who are entitled to
participate in such distributions shall be established by the Directors within
45 days after the last day of the fiscal quarter with respect to which such
distribution shall be made. The Directors shall furnish the Shareholders at the
time of each such distribution with a statement in writing advising as to the
source of funds so distributed or, if the source thereof has not then been
determined, a written statement disclosing the source shall be sent to each
Shareholder who received the distribution not later than (a) 60 days after the
close of the fiscal year in which the distribution was made; or (b) promptly
after the independent auditors of the Corporation have completed, or undertaken
sufficient actions toward completion of, the annual audit of the Corporation, so
that the Directors can determine the source of such distribution, whichever
event shall occur later;





(24)         To
adopt a distribution reinvestment or similar such plan for the Corporation, and
to provide for the cost of the administration thereof to be borne by the
Corporation;





(25)         To
file any and all documents and take any and all such other action as the
Directors in their sole judgment may deem necessary in order that the
Corporation may lawfully conduct its business in any
jurisdiction;


10


(26)         To
participate in any reorganization, re-adjustment, consolidation, merger,
dissolution, sale or purchase of assets, lease or similar proceedings of any
corporation, partnership or other organization in which the Corporation shall
have an interest and in connection therewith to delegate discretionary powers to
any reorganization, protective or similar committee and to pay assessments and
other expenses in connection therewith;





(27)         [reserved]





(28)         To
do all other such acts and things as are incident to the foregoing, and to
exercise all powers which are necessary or useful to carry on the business of
the Corporation, to promote any of the purposes for which the Coro-ration is
formed, and to carry out the provisions of these By-Laws.





(c)           The
Directors shall have concurrent power with the stockholders to alter, amend,
change, add to or repeal the By-Laws of the Corporation.





(d)           The
number of Directors of the Corporation shall be as from time to time fixed by,
or in the manner provided in, the By-Laws of the corporation. Election of
Directors need not be by written ballot unless the By-Laws so
provide.





(e)           In
addition to the powers and authority hereinbefore or by statute expressly
conferred upon them, the Directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the statutes of
Delaware, this Certificate of Incorporation, and any By-Laws hereafter adopted,
provided, however, that no By-Laws hereafter adopted shall invalidate any prior
act of the Directors which would have been valid if such By-Laws had not been
adopted.





ARTICLE
SEVENTH:     Meetings of stockholders may be held
within or without the State of Delaware, as the By-Laws may
provide.





ARTICLE
EIGHTH:         The books of the
Corporation may be kept (subject to any requirement of the laws of the State of
Delaware) out of the State of Delaware at such place or places as may be
designated in the By-Laws of the Corporation. The election of Directors shall be
pursuant to By-Laws of this Corporation.





ARTICLE
NINTH:       (a) Elimination of Certain
Liability of Directors.  A Director of the Corporation shall
not be personally liable to the Corporation or its Shareholders 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 to the Corporation or its
Shareholders, (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 Delaware General Corporation Law, or (iv) for any transaction from which the
Director derived an improper personal benefit.


11


(b)           Indemnification and
Insurance.





(1)           Right to
Indemnification.      Each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a “proceeding”), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer, of the Corporation or 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 or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent’ that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators: provided,
however, that, except as provided in paragraph (b)(2) hereof, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section shall be a contract right
and shall include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition: provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other rapacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this ARTICLE NINTH or otherwise.
The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and
officers.


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(2)           Right of Claimant to Bring
Suit. If a claim under paragraph (b)(1) of this ARTICLE NINTH is not paid
in full by the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which makes it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its Shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its Shareholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.





(3)           Non-Exclusivity of
Rights.      The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this ARTICLE NINTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of this Certificate of Incorporation, the By-Laws, agreement, vote of
Shareholders or disinterested directors or otherwise.





(4)           Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.





ARTICLE
TENTH:       (a) Any determination by the
Directors of the date upon which termination shall occur shall be reflected in a
vote of or written instrument signed by a majority of all of the Directors then
in office, and ratified by the holders of a majority of the outstanding Shares;
provided however that any plan for the termination of the Corporation which
contemplates the distribution to the Shareholders of securities or other
property in kind (other than the right promptly to receive cash) shall require
the vote or consent of the holders of two-thirds of the outstanding
Shares.





(b)           Upon
the termination of the Corporation and unless otherwise provided in a plan for
termination approved by the holders of two-thirds of the Shares outstanding and
a majority of the Directors:





(1)           the
Corporation shall carry on no business except for the purpose of winding up its
affairs;


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(2)           the
Directors shall proceed to wind up the affairs of the Corporation and all of the
powers of the Directors under this Certificate and the By-Laws shall continue
until the affairs of the Corporation shall have been wound up, including the
power to fulfill or discharge the contracts of the Corporation, collect its
assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or
any part of the remaining Corporation’s Assets to one or more persons at public
or private sale for consideration which may consist in whole or in part of cash,
securities or other property of any kind, discharge or pay its liabilities, and
do all other acts appropriate to liquidate its business (and provided that the
Directors may, if permitted by applicable law, and if they deem it to be in the
best interest of the Shareholders, appoint a liquidating trust, or agent, or
other entity to perform one or more of the foregoing functions);
and





(3)           after
paying or adequately providing for the payment of all liabilities, and upon
receipt of such releases, indemnities and refunding agreements, as they deem
necessary for their protection, the Directors or any liquidating trust, agent or
other entity appointed by them, shall distribute the remaining Corporation’s
Assets among the Shareholders, pro rata, according to the number of Shares held
by each.





If any plan for the termination of the
Corporation approved by the holders of two-thirds of the outstanding Shares and
agreeable to a majority of the Directors provides for actions of the Directors
other than aforesaid, the Directors shall have full authority to take all action
as in their opinion is necessary or appropriate to implement such
plan.





ARTICLE
ELEVENTH:      Upon the vote or written consent of a
majority of the Directors and with the approval of the holders of two-thirds of
the Shares then outstanding, at a meeting the notice for which included a
statement of the proposed action, the Directors may (a) merge the Corporation
into, or sell, convey and transfer the Corporation’s Assets to, any corporation,
association, trust or other organization, which may or may not be a subsidiary
of the Corporation, in exchange for shares or securities thereof, or beneficial
interests therein, or other consideration, and the assumption by such transferee
of the liabilities of the Corporation and (b) thereupon terminate the
Corporation and, subject to the By-Laws, distribute such shares, securities,
beneficial interests, or other consideration, ratably among the Shareholders in
redemption of their Shares, provided, however, that the Shareholders would,
thereafter, be the sole equity owners of such entity.





ARTICLE
TWELFTH:      (a)      This
Certificate and the By-Laws may be amended by the vote or written consent of a
majority of the Directors and of the holders of a majority of the outstanding
Shares; provided, however, that no amendment which would reduce the priority of
payment or amount payable to holders of Shares of the Corporation upon
liquidation of the Corporation or that would diminish or eliminate any voting
rights pertaining to holders of Shares shall be made unless approved by the vote
or consent of the holders of two-thirds of the outstanding Shares present, in
person or by proxy, and eligible to vote; provided further, however, that a
majority of the Directors without the vote or consent of Shareholders may at any
time amend this Certificate and the By-Laws to the extent deemed by the
Directors in good faith to be necessary to clarify any ambiguities or correct
any inconsistencies.





(b)           The
affirmative written consent or vote of the holders of a majority of the Shares
of the Corporation is required to approve the principal terms of any transaction
and the nature and amount of the consideration, involving any sale, lease,
exchange or other disposition of fifty percent (50%) or more of the assets of
the Corporation in a single transaction or series of related transactions other
than as part of the orderly liquidation and termination of the Corporation as
directed by the Board of Directors.


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(c)           The
Independent Directors (as defined in the By-Laws) have no obligation to the
Corporation to seek investment opportunities for the Corporation or to refer
such opportunities to the Corporation.





ARTICLE
THIRTEENTH:      This Corporation reserves the right to
amend, alter, change or repeal any provisions contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.


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