Exhibit
3.1




CERTIFICATE
OF INCORPORATION
 OF
 ORE
PHARMACEUTICAL HOLDINGS INC.
 
 I.
 
 The name of this corporation is ORE
PHARMACEUTICAL HOLDINGS INC.
 
 II.
 
 The
address of the registered office of the corporation in the State of Delaware is
1209 Orange Street, City of Wilmington, County of New Castle, and the name of
the registered agent of the corporation in the State of Delaware at such address
is The Corporation Trust Company.
 
 III.
 
 The
purpose of this corporation is to engage in any lawful act or activity for which
a corporation may be organized under the General Corporation Law of the State of
Delaware.
 
 IV.
 
 A.
 
 This
corporation is authorized to issue two classes of stock to be designated,
respectively, “Common Stock” and “Preferred Stock”. The total number of shares
which the Corporation is authorized to issue is Seventeen Million (17,000,000)
shares.  Fifteen Million (15,000,000) shares shall be common stock,
each having a par value of one cent ($.01). Two Million (2,000,000) shares shall
be Preferred Stock, each having par value of one cent ($.01).
 
 The
Preferred Stock may be issued from time to time in one or more series. The Board
of Directors is hereby authorized, by filing a certificate (a “Preferred Stock
Designation”) pursuant to the Delaware General Corporation Law, to fix or alter
from time to time the designation, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions of any
wholly unissued series of Preferred Stock, and to establish from time to time
the number of shares constituting any such series or any of them; and to
increase or decrease the number of shares of any series subsequent to the
issuance of shares of that series, but not below the number of shares of such
series then outstanding.  In case the number of shares of any series
shall be decreased in accordance with the foregoing sentence, the shares
constituting such decrease shall resume the status that they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
  V.
 
 For the
management of the business and for the conduct of the affairs of the
corporation, and in further definition, limitation and regulation of the powers
of the corporation, of its directors and of its stockholders or any class
thereof, as the case may be, it is further provided that:
 
 1
 A.
 
 1.           The
management of the business and the conduct of the affairs of the corporation
shall be vested in its Board of Directors. The number of directors which shall
constitute the whole Board of Directors shall be fixed exclusively by one or
more resolutions adopted by the Board of Directors.
 
 2.           
Subject to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, the directors shall be
divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the Board of Directors.  The
initial term of office of (i) Class I Directors shall expire at the annual
meeting of stockholders to be held in 2010, (ii) Class II Directors shall expire
at the annual meeting of stockholders to be held in 2011, and (iii) Class III
Directors shall expire at the annual meeting of stockholders to be held in
2012.  At each annual meeting of stockholders, directors shall be
elected for a full term of three years to succeed the directors of the class
whose terms expire at such annual meeting.
 
 Notwithstanding
the foregoing provision of this Article, each director shall serve until his
successor is duly elected and qualified or until his death, resignation or
removal.  No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent
director.
 
 3.           Subject
to the rights of the holders of any series of Preferred Stock, no director shall
be removed without cause. Subject to any limitations imposed by law, the Board
of Directors or any individual director may be removed from office at any time
with cause by the affirmative vote of the holders of a majority of the voting
power of all the then-outstanding shares of voting stock of the corporation
entitled to vote at an election of directors (the “Voting Stock”).
 
 4.           Subject
to the rights of the holders of any series of Preferred Stock, any vacancies on
the Board of Directors resulting from death, resignation, disqualification,
removal or other causes and any newly created directorships resulting from any
increase in the number of directors, shall, unless the Board of Directors
determines by resolution that any such vacancies or newly created directorships
shall be filled by the stockholders, except as otherwise provided by law, be
filled only by the affirmative vote of a majority of the directors then in
office, even though less than a quorum of the Board of Directors, and not by the
stockholders.  Any director elected in accordance with the preceding
sentence shall hold office for the remainder of the term of the director for
which the vacancy was created or occurred and until such director’s successor
shall have been elected and qualified.
  2
 
 B.
 
 1.           
Subject to paragraph (h) of Section 43 of the By-laws, the By-laws may be
altered or amended or new By-laws adopted by the affirmative vote of at least
sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the
then-outstanding shares of the Voting Stock.  The Board of Directors
shall also have the power to adopt, amend or repeal By-laws.
 
 2.           The
directors of the corporation need not be elected by written ballot unless the
By-laws so provide.
 
 3.           No
action shall be taken by the stockholders of the corporation except at an annual
or special meeting of stockholders called in accordance with the By-laws, and no
action shall be taken by the stockholders by written consent.
 
 4.           Advance
notice of stockholder nominations for the election of directors and of business
to be brought by stockholders before any meeting of the stockholders of the
Corporation shall be given in the manner provided in the By-laws of the
corporation.
 
 VI.
 
 A.           A
director of the corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for any 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 stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.  If the Delaware General Corporation Law is amended after
approval by the stockholders of this article to authorize corporate action
further eliminating the personal liability of directors, then the liability of a
director shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
 
 B.           Any
repeal or modification of this Article VI shall be prospective and shall not
affect the rights under this Article VI in effect at the time of the alleged
occurrence of any act or omission to act giving rise to liability or
indemnification.
 
 VII.
 
 A.           The
corporation reserves the right to end, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, except as provided in paragraph B of this Article VII,
and all rights conferred upon the stockholders herein are granted subject to
this reservation.
 
 B.           Notwithstanding
any other provisions of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class or series of the
Voting Stock required by law, this Certificate of Incorporation or any Preferred
Stock Designation, the affirmative vote of the holders of a least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the then-outstanding
shares of the Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal Articles V, VI and VII.
 
 3
 
 VIII.
 
 
 8.1           Definitions.  As
used in this Article VIII, the following capitalized terms have the
following meanings when used herein with initial capital letters (and any
references to any portions of Treasury Regulation § 1.382-2T shall include any
successor provisions):
 
 “5% Transaction” means
any Transfer described in clause (a) or (b) of
Section 8.2.
 
 “Agent” has the
meaning set forth in Section 8.6.
 
 “Code” means the
Internal Revenue Code of 1986, as amended.
 
 “Corporation
Securities” means (i) shares of Common Stock, (ii) shares of
Preferred Stock (other than preferred stock described in Section 1504(a)(4)
of the Code), (iii) warrants, rights, or options (including options within
the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase Securities
of the Corporation, and (iv) any Stock.
 
 “Excess Securities”
has the meaning given such term in Section 8.5.
 
 “Expiration Date”
means the beginning of the taxable year of the Corporation to which the Board of
Directors determines that no Tax Benefits may be carried forward, unless the
Board of Directors shall fix an earlier date in accordance with
Section 8.11.
 
 “Five-Percent
Shareholder” means a Person or group of Persons that is a “5-percent
shareholder” of the Corporation pursuant to Treasury Regulation §
1.382-2T(g).
 
 “Ore Pharmaceuticals”
means Ore Pharmaceuticals Inc., a Delaware corporation.
 
 “Percentage Stock
Ownership” means the percentage Stock Ownership interest of any Person or
group (as the context may require) for purposes of Section 382 of the Code as
determined in accordance with Treasury Regulation § 1.382-2T(g), (h),
(j) and (k) or any successor provision.
 
 “Person” means any
individual, firm, corporation or other legal entity, and includes any successor
(by merger or otherwise) of such entity.
 
 “Pre-existing 5%
Stockholder” means (i) any Person that (A) has filed a
Schedule 13D or 13G with respect to the Corporation on or before May 27,
2009 or (B) on or before the thirtieth day after the effectiveness of the
Certificate of Incorporation, establishes to the satisfaction of the Board of
Directors that such Person was a direct Five-Percent Shareholder or a “first
tier entity” of the Corporation within the meaning of Treasury Regulation §
1.382-2T(f)(9) on May 27, 2009 and (ii) any “5-percent owner” or “higher
tier entity” of any Person described in clause (i) within the meaning of
Treasury Regulation § 1.382-2T(f)(10) and 1.382-2T(f)(14).
 
 4
 
 “Prohibited
Distribution” has the meaning given such term in
Section 8.6.
 
 “Prohibited Transfer”
means any purported Transfer of Corporation Securities to the extent that such
Transfer is prohibited and/or void under this Article VIII.
 
 “Public Group” has the
meaning set forth in Treasury Regulation § 1.382-2T(f)(13).
 
 “Purported Transferee”
has the meaning set forth in Section 8.5.
  “Reorganization” means
the transaction in which shares of common stock of Ore Pharmaceuticals are
exchanged for Stock of the Corporation.
 
 “Securities” and
“Security” each
has the meaning set forth in Section 8.8.
 
 “Stock” means any
interest that would be treated as “stock” of the Corporation pursuant to
Treasury Regulation § 1.382-2T(f)(18).
 
 “Stock Ownership”
means any direct or indirect ownership of Stock, including any ownership by
virtue of application of constructive ownership rules, with such direct,
indirect, and constructive ownership determined under the provisions of Code
Section 382 and the regulations thereunder.
 
 “Tax Benefit” means
the net operating loss carryovers, capital loss carryovers, general business
credit carryovers, alternative minimum tax credit carryovers and foreign tax
credit carryovers, as well as any loss or deduction attributable to a “net
unrealized built-in loss” within the meaning of Code Section 382, of the
Corporation or any direct or indirect subsidiary thereof.
 
 “Transfer” means, any
direct or indirect sale, transfer, assignment, conveyance, pledge or other
disposition or other action taken by a person, other than the Corporation, that
alters the Percentage Stock Ownership of any Person or group.  A
Transfer also shall include the creation or grant of an option (including an
option within the meaning of Treasury Regulation §
1.382-2T(h)(4)(v)).  For the avoidance of doubt, a Transfer shall not
include the creation or grant of an option by the Corporation, nor shall a
Transfer include the issuance of Stock by the Corporation.
 
 8.2           Restrictions on
Transfers.  Any attempted Transfer of Corporation Securities
prior to the Expiration Date and any attempted Transfer of Corporation
Securities pursuant to an agreement entered into prior to the Expiration Date,
shall be prohibited and voidab
initio  (a) if the transferor is a Five-Percent
Shareholder or (b) to the extent that, as a result of such Transfer (or any
series of Transfers of which such Transfer is a part), either (1) any
Person or group of Persons would become a Five-Percent Shareholder or
(2) the Percentage Stock Ownership in the Corporation of any Five-Percent
Shareholder would be increased.
 
 5
 8.3           Exceptions.
 
 (a)           Notwithstanding
anything to the contrary herein, if a Transfer by (but not to) a Pre-existing 5%
Stockholder otherwise would be prohibited by Section 8.2, such Transfer
shall not be prohibited under Section 8.2 if both of the following
conditions are met:  (i) such Transfer does not increase the
Percentage Stock Ownership of any Five-Percent Shareholder or create a new
Five-Percent Shareholder, in each case, other than a Public Group (including a
new Public Group created under Treasury Regulation § 1.382-2T(j)(3)(i)), and
(ii) the Stock that is the subject of the Transfer was acquired by such
Pre-existing 5% Stockholder in the Reorganization.
 
 (b)           The
restrictions set forth in Section 8.2 shall not apply to an attempted
Transfer that is a 5% Transaction if the transferor or the transferee obtains
the prior written approval of the Board of Directors or a duly authorized
committee thereof.  As a condition to granting its approval pursuant
to Section 8.3, the Board of Directors may, in its discretion, require (at
the expense of the transferor and/or transferee) an opinion of counsel selected
by the Board of Directors that the Transfer shall not result in the application
of any Section 382 limitation on the use of the Tax Benefits.  The
Board of Directors may exercise the authority granted by this Article VIII
through duly authorized officers or agents of the
Corporation.  Approvals of the Board of Directors hereunder may be
given prospectively or retroactively.  Nothing in this
Section 8.3 shall be construed to limit or restrict the Board of Directors
in the exercise of its fiduciary duties under applicable law.
 
 8.4           Legend.  Each
certificate or book-entry, and any notice of issuance provided to stockholders,
representing shares of Common Stock issued by the Corporation shall
conspicuously include the following legend:
 
 “THE
CERTIFICATE OF INCORPORATION (THE “CERTIFICATE OF INCORPORATION”) OF THE
CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE
CORPORATION’S CERTIFICATE OF INCORPORATION) OF ANY STOCK OF THE CORPORATION
(INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS) WITHOUT THE PRIOR
AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD OF
DIRECTORS”) IF SUCH TRANSFER AFFECTS THE PERCENTAGE OF STOCK OF THE CORPORATION
(WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER), THAT
IS TREATED AS OWNED BY A FIVE PERCENT STOCKHOLDER UNDER THE CODE AND SUCH
REGULATIONS. IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL
BE VOIDAB
INITIO  AND THE PURPORTED TRANSFEREE OF THE STOCK WILL BE
REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF
INCORPORATION) TO THE CORPORATION’S AGENT.  IN THE EVENT OF A TRANSFER
WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN THE MEANING OF
DELAWARE GENERAL CORPORATION LAW (“SECURITIES”) BUT WHICH WOULD VIOLATE THE
TRANSFER RESTRICTIONS, THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE
SECURITIES WILL BE REQUIRED TO TRANSFER SUFFICIENT SECURITIES PURSUANT TO THE
TERMS PROVIDED FOR IN THE CORPORATION’S CERTIFICATE OF INCORPORATION TO CAUSE
THE FIVE PERCENT STOCKHOLDER TO NO LONGER BE IN VIOLATION OF THE TRANSFER
RESTRICTIONS.  THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE
HOLDER OF RECORD OF THIS CERTIFICATE A COPY OF THE CERTIFICATE OF INCORPORATION,
CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS, UPON WRITTEN REQUEST TO
THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS.”
 
 6
 8.5           Excess
Securities.
 
 (a)           No
employee or agent of the Corporation shall record any Prohibited Transfer, and
the purported transferee of such a Prohibited Transfer (the “Purported
Transferee”) shall not be recognized as a stockholder of the Corporation
for any purpose whatsoever in respect of the Corporation Securities which are
the subject of the Prohibited Transfer (the “Excess
Securities”).  Until the Excess Securities are acquired by
another person in a Transfer that is not a Prohibited Transfer, the Purported
Transferee shall not be entitled with respect to such Excess Securities to any
rights of stockholders of the Corporation, including, without limitation, the
right to vote such Excess Securities and to receive dividends or distributions,
whether liquidating or otherwise, in respect thereof, if any,and the Excess Securities
shall be deemed to remain with the transferor unless and until the Excess
Securities are transferred to the Agent pursuant to Section 8.6 of this
Article VIII or until an approval is obtained under Section 8.3 of
this Article VIII.  After the Excess Securities have been
acquired in a Transfer that is not a Prohibited Transfer, the Corporation
Securities shall cease to be Excess Securities.  For this purpose, any
Transfer of Excess Securities not in accordance with the provisions of this
Section 8.5 or Section 8.6 shall also be a Prohibited
Transfer.
 
 (b)           The
Corporation may require as a condition to the registration of the Transfer of
any Corporation Securities or the payment of any distribution on any Corporation
Securities that the proposed Transferee or payee furnish to the Corporation all
information reasonably requested by the Corporation with respect to all the
direct or indirect ownership interests in such Corporation
Securities.  The Corporation may make such arrangements or issue such
instructions to its stock transfer agent as may be determined by the Board of
Directors to be necessary or advisable to implement this Article VIII,
including, without limitation, authorizing such transfer agent to require an
affidavit from a Purported Transferee regarding such Person’s actual and
constructive ownership of stock and other evidence that a Transfer will not be
prohibited by this Article VIII as a condition to registering any
transfer.
 
 8.6           Transfer to
Agent.  If the Board of Directors determines that a Transfer of
Corporation Securities constitutes a Prohibited Transfer then, upon written
demand by the Corporation sent within thirty days of the date on which the Board
of Directors determines that the attempted Transfer would result in Excess
Securities, the Purported Transferee shall transfer or cause to be transferred
any certificate or other evidence of ownership of the Excess Securities within
the Purported Transferee’s possession or control, together with any dividends or
other distributions that were received by the Purported Transferee from the
Corporation with respect to the Excess Securities (“Prohibited
Distributions”), to an agent designated by the Board of Directors (the
“Agent”). The
Agent shall thereupon sell to a buyer or buyers, which may include the
Corporation, the Excess Securities transferred to it in one or more arm’s-length
transactions (on the public securities market on which such Excess Securities
are traded, if possible, or otherwise privately);provided,
however, that any such sale must not constitute a Prohibited Transfer and
provided, further,that
the Agent shall effect such sale or sales in an orderly fashion and shall not be
required to effect any such sale within any specific time frame if, in the
Agent’s discretion, such sale or sales would disrupt the market for the
Corporation Securities or otherwise would adversely affect the value of the
Corporation Securities. If the Purported Transferee has resold the Excess
Securities before receiving the Corporation’s demand to surrender Excess
Securities to the Agent, the Purported Transferee shall be deemed to have sold
the Excess Securities for the Agent, and shall be required to transfer to the
Agent any Prohibited Distributions and proceeds of such sale, except to the
extent that the Corporation grants written permission to the Purported
Transferee to retain a portion of such sales proceeds not exceeding the amount
that the Purported Transferee would have received from the Agent pursuant to
Section 8.7 if the Agent rather than the Purported Transferee had resold
the Excess Securities.
 
 7
 8.7           Application of Proceeds and
Prohibited Distributions.  The Agent shall apply any proceeds
of a sale by it of Excess Securities and, if the Purported Transferee has
previously resold the Excess Securities, any amounts received by it from a
Purported Transferee, together, in either case, with any Prohibited
Distributions, as follows:  (a) first, such amounts shall be paid
to the Agent to the extent necessary to cover its costs and expenses incurred in
connection with its duties hereunder; (b) second, any remaining amounts
shall be paid to the Purported Transferee, up to the amount paid by the
Purported Transferee for the Excess Securities (or the fair market value at the
time of the Transfer, in the event the purported Transfer of the Excess
Securities was, in whole or in part, a gift, inheritance or similar Transfer)
which amount shall be determined at the discretion of the Board of Directors;
and (c) third, any remaining amounts shall be paid to one or more
organizations qualifying under Section 501(c)(3) of the Code (or any comparable
successor provision) selected by the Board of Directors. The Purported
Transferee of Excess Securities shall have no claim, cause of action or any
other recourse whatsoever against any transferor of Excess
Securities.  The Purported Transferee’s sole right with respect to
such shares shall be limited to the amount payable to the Purported Transferee
pursuant to this Section 8.7.  In no event shall the proceeds of
any sale of Excess Securities pursuant to this Section 8.7 inure to the
benefit of the Corporation or the Agent, except to the extent used to cover
costs and expenses incurred by the Agent in performing its duties
hereunder.
 
 8.8           Modification of Remedies for
Certain Indirect Transfers.  In the event of any Transfer which
does not involve a transfer of securities of the Corporation within the meaning
of Delaware Law (“Securities,” and
individually, a “Security”) but which
would cause a Five-Percent Shareholder to violate a restriction on Transfers
provided for in this Article VIII, the application of Section 8.6 and
Section 8.7 shall be modified as described in this
Section 8.8.  In such case, no such Five-Percent Shareholder
shall be required to dispose of any interest that is not a Security, but such
Five-Percent Shareholder and/or any Person whose ownership of Securities is
attributed to such Five-Percent Shareholder shall be deemed to have disposed of
and shall be required to dispose of sufficient Securities (which Securities
shall be disposed of in the inverse order in which the were acquired) to cause
such Five-Percent Shareholder, following such disposition, not to be in
violation of this Article VIII. Such disposition shall be deemed to occur
simultaneously with the Transfer giving rise to the application of this
provision, and such number of Securities that are deemed to be disposed of shall
be considered Excess Securities and shall be disposed of through the Agent as
provided in Sections 8.6 and 8.7, except that the maximum aggregate amount
payable either to such Five-Percent Shareholder or to such other Person that was
the direct holder of such Excess Securities, in connection with such sale shall
be the fair market value of such Excess Securities at the time of the purported
Transfer. All expenses incurred by the Agent in disposing of such Excess Stock
shall be paid out of any amounts due such Five-Percent Shareholder or such other
Person.  The purpose of this Section 8.8 is to extend the
restrictions in Sections 8.2 and 8.6 to situations in which there is a 5%
Transaction without a direct Transfer of Securities, and this Section 8.8,
along with the other provisions of this Article VIII, shall be interpreted
to produce the same results, with differences as the context requires, as a
direct Transfer of Corporation Securities.
  8
 
 8.9           Legal
Proceedings.  If the Purported Transferee fails to surrender
the Excess Securities or the proceeds of a sale thereof to the Agent within
thirty days from the date on which the Corporation makes a written demand
pursuant to Section 8.6 (whether or not made within the time specified in
Section 8.6), then the Corporation shall take all cost effective actions
which it believes are appropriate to enforce the provisions hereof, including
the institution of legal proceedings to compel the surrender.  Nothing
in this Section 8.9 shall (a) be deemed inconsistent with any Transfer
of the Excess Securities provided in this Article VIII being voidab initio,
(b) preclude the Corporation in its discretion from immediately bringing
legal proceedings without a prior demand or (c) cause any failure of the
Corporation to act within the time periods set forth in Section 8.6 to
constitute a waiver or loss of any right of the Corporation under this Article
VIII.
 
 8.10           Damages.  Any
stockholder subject to the provisions of this Article VIII who knowingly
violates the provisions of this Article VIII and any Persons controlling,
controlled by or under common control with such stockholder shall be jointly and
severally liable to the Corporation for, and shall indemnify and hold the
Corporation harmless against, any and all damages suffered as a result of such
violation, including but not limited to damages resulting from a reduction in,
or elimination of, the Corporation’s ability to utilize its Tax Benefits, and
attorneys’ and auditors’ fees incurred in connection with such
violation.
 
 8.11           Board
Authority.
 
 (a)           The
Board of Directors of the Corporation shall have the power to determine all
matters necessary for assessing compliance with this Article VIII,
including, without limitation, (i) the identification of Five-Percent
Shareholders, (ii) whether a Transfer is a 5% Transaction or a Prohibited
Transfer, (iii) the Percentage Stock Ownership in the Corporation of any
Five-Percent Shareholder, (iv) whether an instrument constitutes a
Corporation Security, (v) the amount (or fair market value) due to a
Purported Transferee pursuant to Section 8.7, and (vi) any other
matters which the Board of Directors determines to be relevant; and the good
faith determination of the Board of Directors on such matters shall be
conclusive and binding for all the purposes of this Article VIII. In addition,
the Board of Directors may, to the extent permitted by law, from time to time
establish, modify, amend or rescind by-laws, regulations and procedures of the
Corporation not inconsistent with the provisions of this Article VIII for
purposes of determining whether any Transfer of Corporation Securities would
jeopardize the Corporation’s ability to preserve and use the Tax Benefits and
for the orderly application, administration and implementation of this Article
VIII.
 
 9
 (b)           Nothing
contained in this Article VIII shall limit the authority of the Board of
Directors to take such other action to the extent permitted by law as it deems
necessary or advisable to protect the Corporation and its stockholders in
preserving the Tax Benefits.  Without limiting the generality of the
foregoing, in the event of a change in law making one or more of the following
actions necessary or desirable, the Board of Directors may, by adopting a
written resolution, (i) accelerate or extend the Expiration Date,
(ii) modify the ownership interest percentage in the Corporation or the
Persons or groups covered by this Article VIII, (iii) modify the
definitions of any terms set forth in this Article VIII or (iv) modify the
terms of this Article VIII as appropriate to prevent an ownership change
for purposes of Section 382 of the Code as a result of any changes in applicable
Treasury Regulations or otherwise;provided,
however, that the Board of Directors shall not cause there to be such
acceleration, extension, change or modification unless it determines, by
adopting a written resolution, that such action is reasonably necessary or
advisable to preserve the Tax Benefits or that the continuation of these
restrictions is no longer reasonably necessary for the preservation of the Tax
Benefits, and its conclusion is based upon a written opinion of tax counsel to
the Corporation. Such written resolution of the Board of Directors shall be
filed with the Secretary of the corporation.  Stockholders of the
Corporation shall be notified of such determination through a filing with the
Securities and Exchange Commission or such other method of notice as the
Secretary of the corporation shall deem appropriate.
 
 (c)           In
the case of an ambiguity in the application of any of the provisions of this
Article VIII, including any definition used herein, the Board of Directors shall
have the power to determine the application of such provisions with respect to
any situation based on its reasonable belief, understanding or knowledge of the
circumstances. In the event this Article VIII requires an action by the
Board of Directors but fails to provide specific guidance with respect to such
action, the Board of Directors shall have the power to determine the action to
be taken so long as such action is not contrary to the provisions of this
Article VIII. All such actions, calculations, interpretations and
determinations which are done or made by the Board of Directors in good faith
shall be conclusive and binding on the Corporation, the Agent, and all other
parties for all other purposes of this Article VIII. The Board of Directors
may delegate all or any portion of its duties and powers under this
Article VIII to a committee of the Board of Directors as it deems necessary
or advisable and, to the fullest extent permitted by law, may exercise the
authority granted by this Article VIII through duly authorized officers or
agents of the Corporation. Nothing in this Article VIII shall be construed to
limit or restrict the Board of Directors in the exercise of its fiduciary duties
under applicable law.
 
 8.12           Reliance.  The
Corporation and the members of the Board of Directors shall be fully protected
in relying in good faith upon the information, opinions, reports or statements
of the chief executive officer, the chief financial officer or the chief
accounting officer of the Corporation or of the Corporation’s legal counsel,
independent auditors, transfer agent, investment bankers or other employees and
agents in making the determinations and findings contemplated by this Article
VIII, and the members of the Board of Directors shall not be responsible for any
good faith errors made in connection therewith. For purposes of determining the
existence and identity of, and the amount of any Corporation Securities owned by
any stockholder, the Corporation is entitled to rely conclusively on
(a) the existence and absence of filings of Schedule 13D or 13G under
the Securities and Exchange Act of 1934, as amended (or similar schedules), as
of any date and (b) its actual knowledge of the ownership of Corporation
Securities.
 
 10
 8.13           Obligation to Provide
Information.As a condition to the
registration of the Transfer of any Stock, any Person who is a beneficial, legal
or record holder of Stock, and any proposed Transferee and any Person
controlling, controlled by or under common control with the proposed Transferee,
shall provide such information as the Corporation may request from time to time
in order to determine compliance with this Article VIII or the status of
the Tax Benefits of the Corporation.
 
 8.14           General
Authorization.  The purpose of this Article VIII is to
facilitate the Corporation’s ability to maintain or preserve its Tax
Benefits.  If any provision of this Article VIII or any
application of any provision thereunder is determined to be invalid, the
validity of the remaining provisions shall be unaffected and application of such
provision shall be affected only to the extent necessary to comply with such
determination.
 
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 IN WITNESS WHEREOF, the
undersigned has signed this Certificate of Incorporation on August 13,
2009.
 
 
 /s/ Kevin A. LodenKevin
      A. Loden,Sole
      Incorporator
   
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