OF
CERTIFICATE OF INCORPORATION
The
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware does hereby certify:
FIRST: That at a meeting of
the Board of Directors of SUSTUT EXPLORATION INC. resolutions
were duly adopted setting forth a proposed amendment of the Certificate of
Incorporation of said corporation, declaring said amendment to be advisable and
calling a meeting of the stockholders of said corporation for consideration
thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED, that the Certificate
of Incorporation of this corporation be amended by changing the Article thereof
numbered "FIRST" so that, as amended, said Article shall be and read as
follows:
FIRST:
The name of the corporation is: OPTEX SYSTEMS HOLDINGS, INC.
FURTHER RESOLVED, that the
Certificate of Incorporation of this corporation be amended by changing the
Article thereof numbered “FOURTH”so that, as amended, said Article shall be and
read as follows:
FOURTH:
The corporation shall be authorized to issue the following shares:
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200,000,000 |
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$ |
0.001 |
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5,000 |
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$ |
0.001 |
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* A
Certificate of Designation designating 1,027 shares of Preferred Stock as Series
A Convertible Preferred Stock is being filed simultaneously with this
Certificate of Amendment.
FURTHER RESOLVED, that the
Certificate of Incorporation of this corporation be amended by changing the
Article thereof numbered “SIXTH” so that, as amended, said Article shall be and
read as follows:
SIXTH:
The following provisions are inserted for the management of the business and for
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:
(1) The
number of directors of the corporation shall be such as from time to time shall
be fixed by, or in the manner provided in, the By-laws. Election of directors
need not be by ballot unless the By-laws so provide.
(2) The Board
of Directors shall have power without the assent or vote of the
stockholders:
(a) To make,
alter, amend, change, add to or repeal the By-laws of the corporation; to fix
and vary the amount of capital to be reserved for any proper purpose; to
authorize and cause to be executed mortgages and liens upon all or any part of
the property of the corporation; to determine the use and disposition of any
surplus or net profits; and to fix the times for the declaration and payment of
dividends.
(b)To
determine from time to time whether, and at what times and places, and under
what conditions the accounts and books of the corporation (other than the stock
ledger) or any of them, shall be open to the inspection of the
stockholders.
(3) The
directors in their discretion may submit any contract or act for approval or
ratification at any annual meeting of the stockholders, at any meeting of the
stockholders called for the purpose of considering any such act or contract, or
through a written consent in lieu of a meeting in accordance with the
requirements of the General Corporation Law of Delaware, as amended from time to
time, and any contract or act that shall be so approved or be so ratified by the
vote of the holders of a majority of the stock of the corporation which is
represented in person or by proxy at such meeting (or by written consent whether
received directly or through a proxy) and entitled to vote thereon (provided
that a lawful quorum of stockholders be there represented in person or by proxy)
shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved, ratified, or consented to by every
stockholder of the corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors interest, or for
any other reason.
(4) In
addition to the powers and authorities herein before 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, of this certificate, and to any By-laws from time to time made by the
stockholders; provided, however, that no By-laws so made shall invalidate any
prior act of the directors which would have been valid if such By-law had not
been made.
FURTHER RESOLVED, that the
Certificate of Incorporation of this corporation be amended by changing the
Article thereof numbered “SEVENTH” so that, as amended, said Article shall be
and read as follows:
SEVENTH: No
director shall be liable to the corporation or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except with respect
to (1) a breach of the director's duty of loyalty to the corporation or its
stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
Section 174 of the Delaware Genera] Corporation Law or (4) a transaction from
which the director derived an improper personal benefit, it being the intention
of the foregoing provision to eliminate the liability of the corporation's
directors to the corporation or its stockholders to the fullest extent permitted
by Section 102 (b)(7) of the Delaware General Corporation Law, as amended from
time to time. The corporation shall indemnify to the fullest extent permitted by
Sections 102 (b)(7) and 145 of the Delaware General Corporation Law, as amended
from time to time, each person that such sections grant the corporation the
power to indemnify.
FURTHER RESOLVED, that the
Certificate of Incorporation of this corporation be amended by adding the
Article thereof numbered “EIGHTH” so that, as amended, said Article shall be and
read as follows:
EIGHTH:
Whenever a compromise or arrangement is proposed between this corporation and
its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 Title 8 of the Delaware Code, order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and /or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
FURTHER RESOLVED, that the
Certificate of Incorporation of this corporation be amended by adding the
Article thereof numbered “NINTH” so that, as amended, said Article shall be and
read as follows:
NINTH: 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 law, and all rights and powers conferred herein on stockholders,
directors and officers are subject to this reserved power.
SECOND: That thereafter,
pursuant to resolution of its Board of Directors, a special meeting of the
stockholders of said corporation was duly called and held upon notice in
accordance with Section 222 of the General Corporation Law of the State of
Delaware at which meeting the necessary number of snares as required by statute
were voted in favor of the amendment.
THIRD: That
said amendment was duly adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said
corporation has caused this certificate to be signed this 26th day of March,
2009.
By:
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/s/ Andrey
Oks
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Title:
President and Chief Executive Officer
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Name: Andrey
Oks
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