sv4za
As
filed with the Securities and Exchange Commission on May 6, 2010
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 1 TO
Form S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
REPUBLIC SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
(For Co-Registrants, Please See Table of Other Registrants on the Following Page)
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Delaware
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4953
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65-0716904 |
(State or Other Jurisdiction of
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(Primary Standard Industrial
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(I.R.S. Employer |
Incorporation or Organization)
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Classification Code Number)
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Identification No.) |
Republic Services, Inc.
18500 North Allied Way
Phoenix, Arizona 85054
(480) 627-2700
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
Michael P. Rissman, Esq.
Republic Services, Inc.
Executive Vice President,
General Counsel and Secretary
18500 North Allied Way 85054
Phoenix, Arizona 85054
(480) 627-2700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Jodi A. Simala, Esq.
Mayer Brown LLP
71 S. Wacker Drive
Chicago, Illinois 60606
(312) 782-0600
Approximate date of commencement of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If the securities being registered on this form are being offered in connection with the
formation of a holding company and there is compliance with General Instruction G, check the
following box. o
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Maximum |
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Proposed Maximum |
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Amount of |
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Title of Each Class of |
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Amount to be |
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Offering Price per |
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Aggregate Offering |
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Registration |
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Securities to be Registered |
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Registered |
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Unit |
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Price(1) |
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Fee(2) |
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5.00% Notes due 2020 |
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$850,000,000 |
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100% |
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$850,000,000 |
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$60,605 |
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Guarantees of 5.00% Notes due 2020 |
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None |
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None |
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None |
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None(3) |
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5.25% Notes due 2021 |
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$600,000,000 |
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100% |
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$600,000,000 |
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$42,780 |
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Guarantees of 5.25% Notes due 2021 |
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None |
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None |
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None |
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None(3) |
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5.50% Notes due 2019 |
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$650,000,000 |
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100% |
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$650,000,000 |
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$46,345 |
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Guarantees of 5.50% Notes due 2019 |
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None |
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None |
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None |
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None(3) |
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6.20% Notes due 2040 |
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$650,000,000 |
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100% |
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$650,000,000 |
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$46,345 |
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Guarantees of 6.20% Notes due 2040 |
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None |
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None |
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None |
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None(3) |
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(1) |
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Estimated solely for purposes of calculating the registration fee pursuant to Rule
457(f)(1) under the Securities Act of 1933, as amended. |
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(2) |
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These fees were previously paid with the original filing of this Registration Statement. |
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(3) |
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No further fee is payable pursuant to Rule 457(n) under the Securities Act of 1933, as
amended. |
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary
to delay its effective date until the Registrants shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
TABLE OF OTHER REGISTRANTS
The Address, Including Zip Code, and Telephone Number, Including Area Code, of each Co-Registrants Principal
Executive Offices is 18500 North Allied Way Phoenix, AZ 85054, (480) 627-2700.
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State or Other Jurisdiction of |
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I.R.S. |
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Incorporation or |
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Employer |
Guarantor |
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Organization |
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Identification Number |
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Alabama Recycling Services, Inc.
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Alabama
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63-1125333 |
Autauga County Landfill, LLC
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Alabama
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87-0708224 |
GEK, Inc.
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Alabama
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63-1059042 |
Allied Waste Industries (Arizona), Inc.
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Arizona
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76-0353315 |
Allied Waste Industries (Southwest), Inc.
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Arizona
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86-0834266 |
Allied Waste Systems of Arizona, LLC
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Arizona
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20-4754255 |
Apache Junction Landfill Corporation
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Arizona
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86-0807383 |
Cactus Waste Systems, LLC
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Arizona
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74-0193806 |
Central Arizona Transfer, Inc.
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Arizona
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20-3469072 |
Mesa Disposal, Inc.
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Arizona
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86-0641823 |
Midway Development Company, Inc.
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Arizona
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20-1234650 |
Pinal County Landfill Corp.
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Arizona
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86-0834267 |
Republic Services of Arizona Hauling, LLC
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Arizona
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65-0872472 |
Summit Waste Systems, Inc.
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Arizona
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86-0940236 |
Tri-State Refuse Corporation
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Arizona
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86-0205736 |
A D A J Corporation
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California
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95-3996398 |
Allied Waste of California, Inc.
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California
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86-0841277 |
Allied Waste Transfer Services of California, LLC
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California
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20-4735721 |
Atlas Transport, Inc.
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California
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95-2454199 |
Bay Collection Services, Inc.
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California
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68-0423276 |
Bay Environmental Management, Inc.
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California
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94-2547085 |
Bay Landfills, Inc.
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California
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68-0423275 |
Bay Leasing Company, Inc.
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California
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68-0206342 |
Berkeley Sanitary Service, Inc.
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California
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68-0205653 |
BLT Enterprises of Oxnard, Inc.
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California
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77-0404336 |
Borrego Landfill, Inc.
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California
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33-0777844 |
Browning-Ferris Industries of California, Inc.
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California
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95-2772010 |
Charter Evaporation Resource Recovery Systems
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California
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68-0195486 |
Crockett Sanitary Service, Inc.
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California
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68-0395297 |
Delta Container Corporation
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California
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94-1751866 |
Delta Paper Stock, Co.
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California
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94-2523340 |
Elder Creek Transfer & Recovery, Inc.
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California
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68-0461018 |
Forward, Inc.
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California
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94-1544481 |
Golden Bear Transfer Services, Inc.
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California
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20-1197062 |
Imperial Landfill, Inc.
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California
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86-0972399 |
Independent Trucking Company
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California
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94-1752713 |
International Disposal Corp. of California
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California
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94-2229685 |
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State or Other Jurisdiction of |
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I.R.S. |
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Incorporation or |
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Employer |
Guarantor |
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Organization |
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Identification Number |
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Keller Canyon Landfill Company
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California
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77-0222614 |
La Cañada Disposal Company, Inc.
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California
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95-4108930 |
Lathrop Sunrise Sanitation Corporation
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California
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68-0349203 |
Oceanside Waste & Recycling Services
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California
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95-4516562 |
Otay Landfill, Inc.
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California
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33-0777847 |
Palomar Transfer Station, Inc.
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California
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33-0777845 |
Perdomo & Sons, Inc.
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California
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95-2759289 |
Ramona Landfill, Inc.
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California
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33-0777841 |
RI/Alameda Corp.
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California
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65-1049389 |
Richmond Sanitary Service, Inc.
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California
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68-0204974 |
San Diego Landfill Systems, LLC
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California
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20-2391637 |
San Marcos NCRRF, Inc.
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California
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33-0777842 |
Solano Garbage Company
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California
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94-2537922 |
Sunrise Sanitation Service, Inc.
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California
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94-2737713 |
Sunset Disposal Service, Inc.
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California
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94-2449716 |
Sycamore Landfill, Inc.
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California
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33-0777839 |
West Contra Costa Energy Recovery Company
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California
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68-0050806 |
West Contra Costa Sanitary Landfill, Inc.
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California
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68-0206389 |
West County Landfill, Inc.
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California
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68-0206346 |
West County Resource Recovery, Inc.
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California
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68-0206339 |
Zakaroff Services
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California
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95-3941388 |
Allied Waste Systems of Colorado, LLC
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Colorado
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20-4911774 |
Bunting Trash Service, Inc.
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Colorado
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84-0744234 |
Denver RL North, Inc.
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Colorado
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86-1005476 |
Frontier Waste Services (Colorado), LLC
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Colorado
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91-2121802 |
Republic Services of Colorado Hauling, LLC
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Colorado
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65-0872366 |
Republic Services of Colorado I, LLC
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Colorado
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65-0872372 |
Abilene Landfill TX, LP
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Delaware
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26-0015748 |
Allied Enviroengineering, Inc.
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Delaware
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76-0294430 |
Allied Gas Recovery Systems, L.L.C.
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Delaware
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86-0912667 |
Allied Green Power, Inc.
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Delaware
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59-3771629 |
Allied Nova Scotia, Inc.
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Delaware
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86-0898257 |
Allied Services, LLC
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Delaware
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86-0897719 |
Allied Waste Alabama, Inc.
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Delaware
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86-0836214 |
Allied Waste Company, Inc.
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Delaware
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76-0294431 |
Allied Waste Environmental Management Group, LLC
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Delaware
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20-4987213 |
Allied Waste Holdings (Canada) Ltd.
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Delaware
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86-0911064 |
Allied Waste Industries, Inc.
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Delaware
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88-0228636 |
Allied Waste Landfill Holdings, Inc.
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Delaware
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52-2044846 |
Allied Waste North America, Inc.
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Delaware
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86-0843596 |
Allied Waste of New Jersey-New York, LLC
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Delaware
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86-0911491 |
Allied Waste Recycling Services of New Hampshire, LLC
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Delaware
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20-5406806 |
Allied Waste Rural Sanitation, Inc.
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Delaware
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91-1886463 |
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State or Other Jurisdiction of |
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I.R.S. |
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Incorporation or |
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Employer |
Guarantor |
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Organization |
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Identification Number |
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Allied Waste Services of Colorado, Inc.
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Delaware
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26-1208222 |
Allied Waste Services of North America, LLC
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Delaware
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20-1838910 |
Allied Waste Sycamore Landfill, LLC
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Delaware
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30-0076497 |
Allied Waste Systems Holdings, Inc.
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Delaware
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59-2068174 |
Allied Waste Systems of Indiana, LLC
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Delaware
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20-8044243 |
Allied Waste Systems, Inc.
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Delaware
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36-2750252 |
Allied Waste Transfer Services of Arizona, LLC
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Delaware
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20-5130289 |
Allied Waste Transfer Services of Rhode Island, LLC
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Delaware
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20-5046235 |
Allied Waste Transportation, Inc.
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Delaware
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52-2044848 |
American Disposal Services of Illinois, Inc.
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Delaware
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13-3831976 |
American Disposal Services of New Jersey, Inc.
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Delaware
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36-4229718 |
American Disposal Services of West Virginia, Inc.
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Delaware
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36-4206387 |
American Disposal Services, Inc.
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Delaware
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13-3858494 |
American Disposal Transfer Services of Illinois, Inc.
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Delaware
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36-4210454 |
Anson County Landfill NC, LLC
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Delaware
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52-2044849 |
Ariana, LLC
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Delaware
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65-0886342 |
Attwoods of North America, Inc.
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Delaware
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98-0066273 |
AWIN Leasing Company, Inc.
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Delaware
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76-0351502 |
AWIN Management, Inc.
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Delaware
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76-0353318 |
BBCO, Inc.
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Delaware
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20-2103652 |
BFGSI, L.L.C.
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Delaware
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BFI Atlantic, Inc.
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Delaware
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76-0367890 |
BFI Energy Systems of Albany, Inc.
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Delaware
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76-0293880 |
BFI Energy Systems of Delaware County, Inc.
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Delaware
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76-0489490 |
BFI Energy Systems of Hempstead, Inc.
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Delaware
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76-0167169 |
BFI Energy Systems of Niagara II, Inc.
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Delaware
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86-0997176 |
BFI Energy Systems of Niagara, Inc.
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Delaware
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76-0346826 |
BFI Energy Systems of SEMASS, Inc.
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Delaware
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76-0489491 |
BFI Energy Systems of Southeastern Connecticut, Inc.
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Delaware
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76-0293894 |
BFI Energy Systems of Southeastern Connecticut,
Limited Partnership
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Delaware
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76-0353600 |
BFI International, Inc.
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Delaware
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98-0055699 |
BFI REF-FUEL, INC.
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Delaware
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76-0293907 |
BFI Trans River (GP), Inc.
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Delaware
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76-0490105 |
BFI Transfer Systems of Alabama, LLC
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Delaware
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86-1024458 |
BFI Transfer Systems of DC, LLC
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Delaware
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BFI Transfer Systems of Georgia, LLC
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Delaware
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86-1024457 |
BFI Transfer Systems of Maryland, LLC
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Delaware
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86-1026339 |
BFI Transfer Systems of Mississippi, LLC
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Delaware
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86-1026340 |
BFI Transfer Systems of Texas, LP
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Delaware
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86-1024535 |
BFI Transfer Systems of Virginia, LLC
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Delaware
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86-1024453 |
BFI Waste Services of Indiana, LP
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Delaware
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86-1024528 |
BFI Waste Services of Tennessee, LLC
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Delaware
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State or Other Jurisdiction of |
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I.R.S. |
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Incorporation or |
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Employer |
Guarantor |
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Organization |
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Identification Number |
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BFI Waste Services of Texas, LP
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Delaware
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86-1024527 |
BFI Waste Services, LLC
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Delaware
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86-1006825 |
BFI Waste Systems of Alabama, LLC
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Delaware
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86-1024529 |
BFI Waste Systems of Arkansas, LLC
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Delaware
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86-1024531 |
BFI Waste Systems of Georgia, LLC
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Delaware
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86-1024530 |
BFI Waste Systems of Indiana, LP
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Delaware
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86-1024534 |
BFI Waste Systems of Kentucky, LLC
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Delaware
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86-1024543 |
BFI Waste Systems of Louisiana, LLC
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Delaware
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86-1024541 |
BFI Waste Systems of Mississippi, LLC
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Delaware
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86-1024539 |
BFI Waste Systems of Missouri, LLC
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Delaware
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86-1024540 |
BFI Waste Systems of North America, LLC
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Delaware
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41-1696636 |
BFI Waste Systems of North Carolina, LLC
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Delaware
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86-1024538 |
BFI Waste Systems of South Carolina, LLC
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Delaware
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BFI Waste Systems of Tennessee, LLC
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Delaware
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86-1024463 |
BFI Waste Systems of Virginia, LLC
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Delaware
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86-1024461 |
Blue Ridge Landfill TX, LP
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Delaware
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86-1024533 |
Bond County Landfill, Inc.
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Delaware
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86-0968446 |
Brenham Total Roll-Offs, LP
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Delaware
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86-1038622 |
Bridgeton Landfill, LLC
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Delaware
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86-0898487 |
Bridgeton Transfer Station, LLC
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Delaware
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42-1583102 |
Browning-Ferris Financial Services, Inc.
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Delaware
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76-0485106 |
Browning-Ferris Industries of Florida, Inc.
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Delaware
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74-1819238 |
Browning-Ferris Industries of Illinois, Inc.
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Delaware
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31-1697534 |
Browning-Ferris Industries of Ohio, Inc.
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Delaware
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74-6186941 |
Browning-Ferris Industries, LLC
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Delaware
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74-1673682 |
Browning-Ferris Services, Inc.
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Delaware
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90-0112928 |
Brunswick Waste Management Facility, LLC
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Delaware
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86-0898494 |
Butler County Landfill, LLC
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Delaware
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86-0898479 |
Camelot Landfill TX, LP
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Delaware
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86-0913826 |
CC Landfill, Inc.
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Delaware
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86-0930050 |
Cefe Landfill TX, LP
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Delaware
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20-2761828 |
Chilton Landfill, LLC
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Delaware
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86-0979028 |
Cocopah Landfill, Inc.
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Delaware
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86-0979654 |
Compactor Rental Systems of Delaware, Inc.
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Delaware
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65-0723614 |
Consolidated Disposal Service, L.L.C.
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Delaware
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65-0844469 |
Continental Waste Industries, L.L.C.
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Delaware
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11-2909512 |
Copper Mountain Landfill, Inc.
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Delaware
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86-0980013 |
County Disposal (Ohio), Inc.
|
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Delaware
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13-3831975 |
County Disposal, Inc.
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Delaware
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13-3831974 |
County Landfill, Inc.
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Delaware
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13-3850472 |
Courtney Ridge Landfill, LLC
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Delaware
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86-0979799 |
Crow Landfill TX, L.P.
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Delaware
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52-2044854 |
D & L Disposal, L.L.C.
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Delaware
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37-1355114 |
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State or Other Jurisdiction of |
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I.R.S. |
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Incorporation or |
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Employer |
Guarantor |
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Organization |
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Identification Number |
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East Chicago Compost Facility, Inc.
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Delaware
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26-3472299 |
E Leasing Company, LLC
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Delaware
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86-1013760 |
ECDC Environmental of Humboldt County, Inc.
|
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Delaware
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91-1901449 |
ECDC Holdings, Inc.
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Delaware
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86-0897722 |
Ellis County Landfill TX, LP
|
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Delaware
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52-2044857 |
Ellis Scott Landfill MO, LLC
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Delaware
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52-2044859 |
Environmental Development Corp.
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Delaware
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35-1783546 |
Environtech, Inc.
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|
Delaware
|
|
36-3485658 |
Envotech-Illinois L.L.C.
|
|
Delaware
|
|
37-1355113 |
Evergreen Scavenger Service, Inc.
|
|
Delaware
|
|
36-4179870 |
Evergreen Scavenger Service, L.L.C.
|
|
Delaware
|
|
36-4172002 |
Forest View Landfill, LLC
|
|
Delaware
|
|
86-0979824 |
Fort Worth Landfill TX, LP
|
|
Delaware
|
|
86-0899429 |
Galveston County Landfill TX, LP
|
|
Delaware
|
|
26-0015758 |
General Refuse Rolloff Corp.
|
|
Delaware
|
|
52-2093347 |
Georgia Recycling Services, Inc.
|
|
Delaware
|
|
58-2178434 |
Giles Road Landfill TX, LP
|
|
Delaware
|
|
20-3365888 |
Golden Triangle Landfill TX, LP
|
|
Delaware
|
|
26-0015711 |
Great Lakes Disposal Service, Inc.
|
|
Delaware
|
|
36-2642310 |
Great Plains Landfill OK, LLC
|
|
Delaware
|
|
52-2044861 |
Greenwood Landfill TX, LP
|
|
Delaware
|
|
91-2098721 |
Gulf West Landfill TX, LP
|
|
Delaware
|
|
26-0015867 |
H Leasing Company, LLC
|
|
Delaware
|
|
86-1013761 |
Itasca Landfill TX, LP
|
|
Delaware
|
|
26-0015841 |
Jefferson City Landfill, LLC
|
|
Delaware
|
|
86-0898553 |
Kandel Enterprises, LLC
|
|
Delaware
|
|
26-1602664 |
Kerrville Landfill TX, LP
|
|
Delaware
|
|
26-0015826 |
Lee County Landfill SC, LLC
|
|
Delaware
|
|
52-2044865 |
Lemons Landfill, LLC
|
|
Delaware
|
|
86-0898495 |
Lewisville Landfill TX, LP
|
|
Delaware
|
|
26-0015695 |
Liberty Waste Holdings, Inc.
|
|
Delaware
|
|
52-2049620 |
Liberty Waste Services Limited, L.L.C.
|
|
Delaware
|
|
34-1812746 |
Liberty Waste Services of McCook, L.L.C.
|
|
Delaware
|
|
23-2883645 |
Little Creek Landing, LLC
|
|
Delaware
|
|
68-0562490 |
Local Sanitation of Rowan County, L.L.C.
|
|
Delaware
|
|
61-1342580 |
Lucas County Land Development, Inc.
|
|
Delaware
|
|
86-1042740 |
Mars Road TX, LP
|
|
Delaware
|
|
20-3905016 |
McCarty Road Landfill TX, LP
|
|
Delaware
|
|
26-0015687 |
Mesquite Landfill TX, LP
|
|
Delaware
|
|
86-0897693 |
Mexia Landfill TX, LP
|
|
Delaware
|
|
26-0015674 |
Mountain Home Disposal, Inc.
|
|
Delaware
|
|
94-3284171 |
N Leasing Company, LLC
|
|
Delaware
|
|
86-1013762 |
NationsWaste, Inc.
|
|
Delaware
|
|
25-1774253 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Ncorp, Inc.
|
|
Delaware
|
|
86-1013502 |
New York Waste Services, LLC
|
|
Delaware
|
|
86-1005076 |
Northeast Landfill, LLC
|
|
Delaware
|
|
72-1564964 |
Ohio Republic Contracts, II, Inc.
|
|
Delaware
|
|
65-1024354 |
Ottawa County Landfill, Inc.
|
|
Delaware
|
|
59-2068171 |
Packerton Land Company, L.L.C.
|
|
Delaware
|
|
23-2930927 |
Panama Road Landfill, TX, L.P.
|
|
Delaware
|
|
86-1036043 |
Pine Hill Farms Landfill TX, LP
|
|
Delaware
|
|
86-0899426 |
Pinecrest Landfill OK, LLC
|
|
Delaware
|
|
52-2044866 |
Pleasant Oaks Landfill TX, LP
|
|
Delaware
|
|
91-1927530 |
Polk County Landfill, LLC
|
|
Delaware
|
|
86-1036041 |
Republic Services Financial LP, Inc.
|
|
Delaware
|
|
65-1008378 |
Republic Services Financial, Limited Partnership
|
|
Delaware
|
|
65-1008373 |
Republic Services Group, LLC
|
|
Delaware
|
|
65-0984987 |
Republic Services Holding Company, Inc.
|
|
Delaware
|
|
65-0984982 |
Republic Services of California Holding Company, Inc.
|
|
Delaware
|
|
65-0984976 |
Republic Services of California II, LLC
|
|
Delaware
|
|
65-0872373 |
Republic Services of Florida GP, Inc.
|
|
Delaware
|
|
65-0963062 |
Republic Services of Florida LP, Inc.
|
|
Delaware
|
|
65-0963063 |
Republic Services of Florida, Limited Partnership
|
|
Delaware
|
|
65-0965470 |
Republic Services of Georgia GP, LLC
|
|
Delaware
|
|
65-0963065 |
Republic Services of Georgia LP, LLC
|
|
Delaware
|
|
65-0963064 |
Republic Services of Georgia, Limited Partnership
|
|
Delaware
|
|
65-0965473 |
Republic Services of Indiana LP, Inc.
|
|
Delaware
|
|
65-1012407 |
Republic Services of Indiana Transportation, LLC
|
|
Delaware
|
|
06-1642141 |
Republic Services of Indiana, Limited Partnership
|
|
Delaware
|
|
65-1012411 |
Republic Services of Michigan Holding Company, Inc.
|
|
Delaware
|
|
65-0984978 |
Republic Services of New Jersey, LLC
|
|
Delaware
|
|
65-1050939 |
Republic Services of Pennsylvania, LLC
|
|
Delaware
|
|
65-1012129 |
Republic Services of South Carolina, LLC
|
|
Delaware
|
|
65-1023675 |
Republic Services of Southern California, LLC
|
|
Delaware
|
|
65-1242656 |
Republic Services of Wisconsin GP, LLC
|
|
Delaware
|
|
65-0984993 |
Republic Services of Wisconsin LP, LLC
|
|
Delaware
|
|
65-0984994 |
Republic Services of Wisconsin, Limited Partnership
|
|
Delaware
|
|
65-0984991 |
Republic Services Vasco Road, LLC
|
|
Delaware
|
|
65-0936716 |
Republic Waste Services of Southern California, LLC
|
|
Delaware
|
|
65-0845646 |
Republic Waste Services of Texas GP, Inc.
|
|
Delaware
|
|
65-0964350 |
Republic Waste Services of Texas LP, Inc.
|
|
Delaware
|
|
65-0963006 |
Rio Grande Valley Landfill TX, LP
|
|
Delaware
|
|
26-0015192 |
Risk Services, Inc.
|
|
Delaware
|
|
76-0162247 |
RITM, LLC
|
|
Delaware
|
|
51-0345295 |
Royal Oaks Landfill TX, LP
|
|
Delaware
|
|
91-2098725 |
Rubbish Control, LLC
|
|
Delaware
|
|
65-0844465 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
RWS Transport, L.P.
|
|
Delaware
|
|
27-0061136 |
S Leasing Company, LLC
|
|
Delaware
|
|
86-1013763 |
Sand Valley Holdings, L.L.C.
|
|
Delaware
|
|
51-0391894 |
Sangamon Valley Landfill, Inc.
|
|
Delaware
|
|
86-0970304 |
Show-Me Landfill, LLC
|
|
Delaware
|
|
86-0898621 |
Southeast Landfill, LLC
|
|
Delaware
|
|
86-0898482 |
Southwest Landfill TX, LP
|
|
Delaware
|
|
26-0015177 |
Standard Waste, Inc.
|
|
Delaware
|
|
37-1049834 |
Taylor Ridge Landfill, Inc.
|
|
Delaware
|
|
86-0970061 |
Tennessee Union County Landfill, Inc.
|
|
Delaware
|
|
86-0980095 |
Tessman Road Landfill TX, LP
|
|
Delaware
|
|
20-3365914 |
Turkey Creek Landfill TX, LP
|
|
Delaware
|
|
86-0899439 |
Victoria Landfill TX, LP
|
|
Delaware
|
|
26-0015157 |
Wayne County Landfill IL, Inc.
|
|
Delaware
|
|
52-2044868 |
Webster Parish Landfill, L.L.C.
|
|
Delaware
|
|
62-1772690 |
Whispering Pines Landfill TX, LP
|
|
Delaware
|
|
26-0015118 |
Willow Ridge Landfill, LLC
|
|
Delaware
|
|
86-1004978 |
Allied Waste Transfer Services of Florida, LLC
|
|
Florida
|
|
20-3534645 |
Delta Dade Recycling Corp.
|
|
Florida
|
|
65-1048925 |
Delta Resources Corp.
|
|
Florida
|
|
65-0891249 |
Delta Site Development Corp.
|
|
Florida
|
|
65-0936999 |
Delta Waste Corp.
|
|
Florida
|
|
65-0919421 |
Envirocycle, Inc.
|
|
Florida
|
|
65-0243954 |
Gulfcoast Waste Service, Inc.
|
|
Florida
|
|
65-0577644 |
Manumit of Florida, Inc.
|
|
Florida
|
|
58-2065448 |
Republic Services Aviation, Inc.
|
|
Florida
|
|
65-0959331 |
Schofield Corporation of Orlando
|
|
Florida
|
|
59-3047860 |
Allied Waste Hauling of Georgia, Inc.
|
|
Georgia
|
|
86-0842495 |
Allied Waste Industries of Georgia, Inc.
|
|
Georgia
|
|
86-0842496 |
Central Virginia Properties, LLC
|
|
Georgia
|
|
20-0767660 |
Gateway Landfill, LLC
|
|
Georgia
|
|
83-0337817 |
Golden Waste Disposal, Inc.
|
|
Georgia
|
|
58-1849752 |
Price & Sons Recycling Company
|
|
Georgia
|
|
65-0249986 |
S & S Recycling, Inc.
|
|
Georgia
|
|
58-2237428 |
Wayne Developers, LLC
|
|
Georgia
|
|
26-0637318 |
Ada County Development Company, Inc.
|
|
Idaho
|
|
20-0333823 |
Allied Waste Services of Page, Inc.
|
|
Idaho
|
|
82-0336097 |
American Sanitation, Inc.
|
|
Idaho
|
|
82-0469055 |
ADS of Illinois, Inc.
|
|
Illinois
|
|
36-4243045 |
Allied Waste Industries of Illinois, Inc.
|
|
Illinois
|
|
36-3915626 |
Arc Disposal Company, Inc.
|
|
Illinois
|
|
36-2386793 |
Area Disposal, Inc.
|
|
Illinois
|
|
36-3766465 |
Borrow Pit Corp.
|
|
Illinois
|
|
|
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Brickyard Disposal & Recycling, Inc.
|
|
Illinois
|
|
37-0948710 |
CWI of Illinois, Inc.
|
|
Illinois
|
|
38-3073435 |
Environmental Reclamation Company
|
|
Illinois
|
|
37-1140323 |
Fred Barbara Trucking Co., Inc.
|
|
Illinois
|
|
36-3030929 |
Illinois Landfill, Inc.
|
|
Illinois
|
|
35-1811975 |
Illinois Recycling Services, Inc.
|
|
Illinois
|
|
36-3587447 |
Illinois Valley Recycling, Inc.
|
|
Illinois
|
|
36-3754225 |
Ingrum Waste Disposal, Inc.
|
|
Illinois
|
|
36-4252595 |
Kankakee Quarry, Inc.
|
|
Illinois
|
|
71-0938626 |
LandComp Corporation
|
|
Illinois
|
|
36-3813024 |
Lee County Landfill, Inc.
|
|
Illinois
|
|
37-1360924 |
Liberty Waste Services of Illinois, L.L.C.
|
|
Illinois
|
|
52-1960161 |
Loop Recycling, Inc.
|
|
Illinois
|
|
36-3107689 |
Loop Transfer, Incorporated
|
|
Illinois
|
|
36-3376490 |
Northlake Transfer, Inc.
|
|
Illinois
|
|
20-1513744 |
RCS, Inc.
|
|
Illinois
|
|
37-1270589 |
Roxana Landfill, Inc.
|
|
Illinois
|
|
43-1352176 |
Saline County Landfill, Inc.
|
|
Illinois
|
|
37-1208674 |
Shred All Recycling Systems Inc.
|
|
Illinois
|
|
36-3583146 |
Southern Illinois Regional Landfill, Inc.
|
|
Illinois
|
|
22-3032671 |
Streator Area Landfill, Inc.
|
|
Illinois
|
|
36-3207276 |
Suburban Transfer, Inc.
|
|
Illinois
|
|
36-4048153 |
Suburban Warehouse, Inc.
|
|
Illinois
|
|
36-3714060 |
Tri-State Recycling Services, Inc.
|
|
Illinois
|
|
36-3768524 |
Upper Rock Island County Landfill, Inc.
|
|
Illinois
|
|
36-3159198 |
Agricultural Acquisitions, LLC
|
|
Indiana
|
|
20-5469750 |
Allied Waste Industries of Northwest Indiana, Inc.
|
|
Indiana
|
|
86-0807381 |
Benton County Development Company
|
|
Indiana
|
|
45-0527882 |
Clinton County Landfill Partnership
|
|
Indiana
|
|
20-0836700 |
County Line Landfill Partnership
|
|
Indiana
|
|
86-0900027 |
DTC Management, Inc.
|
|
Indiana
|
|
35-2090758 |
Illiana Disposal Partnership
|
|
Indiana
|
|
86-0900028 |
Jasper County Development Company Partnership
|
|
Indiana
|
|
|
Key Waste Indiana Partnership
|
|
Indiana
|
|
86-0900031 |
Lake County C & D Development Partnership
|
|
Indiana
|
|
86-1007828 |
Newton County Landfill Partnership
|
|
Indiana
|
|
86-0899962 |
Springfield Environmental General Partnership
|
|
Indiana
|
|
91-2078723 |
Tippecanoe County Waste Services Partnership
|
|
Indiana
|
|
20-1305645 |
Warrick County Development Company
|
|
Indiana
|
|
20-1429593 |
Wastehaul, Inc.
|
|
Indiana
|
|
35-1616387 |
Allied Waste Transfer Services of Iowa, LLC
|
|
Iowa
|
|
20-2721565 |
Jetter Disposal, Inc.
|
|
Iowa
|
|
36-4221455 |
American Disposal Services of Kansas, Inc.
|
|
Kansas
|
|
48-0841017 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Resource Recovery, Inc.
|
|
Kansas
|
|
48-1034034 |
Sunset Disposal, Inc.
|
|
Kansas
|
|
48-0915496 |
Benson Valley Landfill General Partnership
|
|
Kentucky
|
|
20-3351757 |
Blue Ridge Landfill General Partnership
|
|
Kentucky
|
|
91-2079015 |
Green Valley Landfill General Partnership
|
|
Kentucky
|
|
91-2078719 |
Morehead Landfill General Partnership
|
|
Kentucky
|
|
|
Republic Services of Kentucky, LLC
|
|
Kentucky
|
|
65-0972931 |
Crescent Acres Landfill, LLC
|
|
Louisiana
|
|
20-3620449 |
Frontier Waste Services of Louisiana L.L.C.
|
|
Louisiana
|
|
|
Jefferson Parish Development Company, LLC
|
|
Louisiana
|
|
20-3590498 |
St. Bernard Parish Development Company, LLC
|
|
Louisiana
|
|
20-3590527 |
Browning-Ferris, Inc.
|
|
Maryland
|
|
74-1990096 |
Calvert Trash Systems, Incorporated
|
|
Maryland
|
|
52-1701593 |
Honeygo Run Reclamation Center, Inc.
|
|
Maryland
|
|
52-1781270 |
Prince Georges County Landfill, LLC
|
|
Maryland
|
|
68-0564610 |
Allied Acquisition Two, Inc.
|
|
Massachusetts
|
|
|
Allied Waste Services of Massachusetts, LLC
|
|
Massachusetts
|
|
86-1024452 |
Atlantic Waste Holding Company, Inc.
|
|
Massachusetts
|
|
42-1548814 |
BFI Transfer Systems of Massachusetts, LLC
|
|
Massachusetts
|
|
86-1024454 |
BFI Waste Systems of Massachusetts, LLC
|
|
Massachusetts
|
|
86-1024544 |
Browning-Ferris Industries, Inc.
|
|
Massachusetts
|
|
04-1254350 |
F. P. McNamara Rubbish Removal, Inc.
|
|
Massachusetts
|
|
04-2400121 |
Vining Disposal Service, Inc.
|
|
Massachusetts
|
|
04-2534061 |
Adrian Landfill, Inc.
|
|
Michigan
|
|
38-1799679 |
Allied Waste Systems of Michigan, LLC
|
|
Michigan
|
|
20-3358409 |
C & C Expanded Sanitary Landfill, LLC
|
|
Michigan
|
|
20-2540046 |
Central Sanitary Landfill, Inc.
|
|
Michigan
|
|
38-2917813 |
Citizens Disposal, Inc.
|
|
Michigan
|
|
38-2521526 |
City-Star Services, Inc.
|
|
Michigan
|
|
38-1841203 |
Clarkston Disposal, Inc.
|
|
Michigan
|
|
38-2872489 |
Dinverno, Inc.
|
|
Michigan
|
|
38-2318347 |
Eagle Industries Leasing, Inc.
|
|
Michigan
|
|
38-3188507 |
FLL, Inc.
|
|
Michigan
|
|
38-2679508 |
G. Van Dyken Disposal Inc.
|
|
Michigan
|
|
38-2998205 |
Harlands Sanitary Landfill, Inc.
|
|
Michigan
|
|
38-2016636 |
Oakland Heights Development, Inc.
|
|
Michigan
|
|
38-2388322 |
Reliable Disposal, Inc.
|
|
Michigan
|
|
38-2301483 |
Republic Services of Michigan Hauling, LLC
|
|
Michigan
|
|
65-0872289 |
Republic Services of Michigan I, LLC
|
|
Michigan
|
|
65-0872399 |
Republic Services of Michigan II, LLC
|
|
Michigan
|
|
65-0872398 |
Republic Services of Michigan III, LLC
|
|
Michigan
|
|
65-0872397 |
Republic Services of Michigan IV, LLC
|
|
Michigan
|
|
65-0872396 |
Republic Services of Michigan V, LLC
|
|
Michigan
|
|
65-0872395 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Royal Holdings, Inc.
|
|
Michigan
|
|
38-3244832 |
Sanitary Disposal Service, Inc.
|
|
Michigan
|
|
38-2283539 |
Sauk Trail Development, Inc.
|
|
Michigan
|
|
38-2489474 |
Standard Disposal Services, Inc.
|
|
Michigan
|
|
38-2261256 |
Standard Environmental Services, Inc.
|
|
Michigan
|
|
38-3353218 |
Tay-Ban Corporation
|
|
Michigan
|
|
38-2605338 |
Tri-County Refuse Service, Inc.
|
|
Michigan
|
|
38-3293469 |
Woodlake Sanitary Service, Inc.
|
|
Minnesota
|
|
41-0673360 |
Hancock County Development Company, LLC
|
|
Mississippi
|
|
20-3546528 |
Harrison County Landfill, LLC
|
|
Mississippi
|
|
72-1569826 |
Jackson County Landfill, LLC
|
|
Mississippi
|
|
86-1055245 |
Mississippi Waste Paper Company
|
|
Mississippi
|
|
64-0817153 |
Autoshred, Inc.
|
|
Missouri
|
|
43-1030222 |
Belleville Landfill, Inc.
|
|
Missouri
|
|
37-1037997 |
CWI of Missouri, Inc.
|
|
Missouri
|
|
43-1527951 |
Missouri City Landfill, LLC
|
|
Missouri
|
|
47-0921988 |
Rock Road Industries, Inc.
|
|
Missouri
|
|
43-1509575 |
St. Joseph Landfill, LLC
|
|
Missouri
|
|
20-1475879 |
Tates Transfer Systems, Inc.
|
|
Missouri
|
|
43-1587860 |
Thomas Disposal Service, Inc.
|
|
Missouri
|
|
43-1058393 |
Allied Waste Systems of Montana, LLC
|
|
Montana
|
|
20-4777694 |
Oscars Collection System of Fremont, Inc.
|
|
Nebraska
|
|
47-0756617 |
Browning-Ferris Industries Chemical Services, Inc.
|
|
Nevada
|
|
74-1362353 |
Republic Dumpco, Inc.
|
|
Nevada
|
|
65-0772299 |
Republic Environmental Technologies, Inc.
|
|
Nevada
|
|
65-0768398 |
Republic Silver State Disposal, Inc.
|
|
Nevada
|
|
65-0768402 |
Allied Transfer Systems of New Jersey, LLC
|
|
New Jersey
|
|
86-0982078 |
Allied Waste of New Jersey, Inc.
|
|
New Jersey
|
|
22-3525350 |
Allied Waste Systems of New Jersey, LLC
|
|
New Jersey
|
|
86-0982077 |
American Materials Recycling Corp.
|
|
New Jersey
|
|
22-3211753 |
Automated Modular Systems, Inc.
|
|
New Jersey
|
|
22-2830098 |
BFI Energy Systems of Essex County, Inc.
|
|
New Jersey
|
|
76-0167158 |
BFI Transfer Systems of New Jersey, Inc.
|
|
New Jersey
|
|
22-3308380 |
BFI Waste Systems of New Jersey, Inc.
|
|
New Jersey
|
|
22-1755133 |
Browning-Ferris Industries of New Jersey, Inc.
|
|
New Jersey
|
|
22-2095920 |
Louis Pinto & Son, Inc., Sanitation Contractors
|
|
New Jersey
|
|
22-1947106 |
Newco Waste Systems of New Jersey, Inc.
|
|
New Jersey
|
|
16-1188724 |
Tom Lucianos Disposal Service, Inc.
|
|
New Jersey
|
|
22-2035629 |
Total Solid Waste Recyclers, Inc.
|
|
New Jersey
|
|
22-2647500 |
Allied Waste Industries (New Mexico), Inc.
|
|
New Mexico
|
|
85-0444394 |
Allied Waste Niagara Falls Landfill, LLC
|
|
New York
|
|
20-4809296 |
Allied Waste of Long Island, Inc.
|
|
New York
|
|
86-0896185 |
Allied Waste Transfer Services of New York, LLC
|
|
New York
|
|
20-3651091 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
American Transfer Company, Inc.
|
|
New York
|
|
11-3189094 |
Browning-Ferris Industries of New York, Inc.
|
|
New York
|
|
14-1496692 |
CECOS International, Inc.
|
|
New York
|
|
16-1069544 |
Island Waste Services Ltd.
|
|
New York
|
|
11-2815030 |
Menands Environmental Solutions, LLC
|
|
New York
|
|
20-1644884 |
Tricil (N.Y.), Inc.
|
|
New York
|
|
16-0875255 |
Waste Services of New York, Inc.
|
|
New York
|
|
22-3515302 |
Wayne County Land Development, LLC
|
|
New York
|
|
20-1687434 |
Allied Waste Systems of North Carolina, LLC
|
|
North Carolina
|
|
20-3626667 |
Allied Waste Transfer Services of North Carolina, LLC
|
|
North Carolina
|
|
20-3147983 |
Lake Norman Landfill, Inc.
|
|
North Carolina
|
|
56-2076617 |
Republic Services of North Carolina, LLC
|
|
North Carolina
|
|
65-0972930 |
Republic Services Real Estate Holding, Inc.
|
|
North Carolina
|
|
65-1024362 |
Allied Waste Transfer Services of Lima, LLC
|
|
Ohio
|
|
20-3880719 |
AWIN Leasing II, LLC
|
|
Ohio
|
|
86-1015694 |
Carbon Limestone Landfill, LLC
|
|
Ohio
|
|
20-2059890 |
Celina Landfill, Inc.
|
|
Ohio
|
|
31-0813291 |
Cherokee Run Landfill, Inc.
|
|
Ohio
|
|
31-1061009 |
County Environmental Landfill, LLC
|
|
Ohio
|
|
20-2060052 |
County Land Development Landfill, LLC
|
|
Ohio
|
|
20-2059973 |
Dempsey Waste Systems II, Inc.
|
|
Ohio
|
|
91-2094398 |
General Refuse Service of Ohio, L.L.C.
|
|
Ohio
|
|
|
Lorain County Landfill, LLC
|
|
Ohio
|
|
20-2059931 |
Lucas County Landfill, LLC
|
|
Ohio
|
|
20-2060013 |
Noble Road Landfill, Inc.
|
|
Ohio
|
|
34-1625432 |
Ohio Republic Contracts, Inc.
|
|
Ohio
|
|
65-1024359 |
Port Clinton Landfill, Inc.
|
|
Ohio
|
|
20-1095124 |
Preble County Landfill, Inc.
|
|
Ohio
|
|
81-0579596 |
R.C. Miller Enterprises, Inc.
|
|
Ohio
|
|
34-1727361 |
R.C. Miller Refuse Service Inc.
|
|
Ohio
|
|
34-1041193 |
Republic Ohio Contracts, LLC
|
|
Ohio
|
|
|
Republic Services of Ohio Hauling, LLC
|
|
Ohio
|
|
65-0872369 |
Republic Services of Ohio I, LLC
|
|
Ohio
|
|
65-0872405 |
Republic Services of Ohio II, LLC
|
|
Ohio
|
|
65-0872404 |
Republic Services of Ohio III, LLC
|
|
Ohio
|
|
65-0872403 |
Republic Services of Ohio IV, LLC
|
|
Ohio
|
|
65-0872402 |
Ross Bros. Waste & Recycling Co.
|
|
Ohio
|
|
31-1362843 |
The Ecology Group, Inc.
|
|
Ohio
|
|
31-1370194 |
Williams County Landfill Inc.
|
|
Ohio
|
|
34-1167514 |
ADS, Inc.
|
|
Oklahoma
|
|
73-1379293 |
Allied Waste Services of Stillwater, Inc.
|
|
Oklahoma
|
|
73-1286140 |
American Disposal Services of Missouri, Inc.
|
|
Oklahoma
|
|
73-1417578 |
BFI Waste Systems of Oklahoma, LLC
|
|
Oklahoma
|
|
86-1024464 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Oklahoma City Landfill, L.L.C.
|
|
Oklahoma
|
|
86-0901510 |
Pittsburg County Landfill, Inc.
|
|
Oklahoma
|
|
73-1379294 |
Agri-Tech, Inc. of Oregon
|
|
Oregon
|
|
93-0831569 |
Albany Lebanon Sanitation, Inc.
|
|
Oregon
|
|
93-0593828 |
Allied Waste Transfer Services of Oregon, LLC
|
|
Oregon
|
|
20-4682479 |
Bio-Med of Oregon, Inc.
|
|
Oregon
|
|
93-0666288 |
Capitol Recycling and Disposal, Inc.
|
|
Oregon
|
|
93-1197641 |
Corvallis Disposal Co.
|
|
Oregon
|
|
93-0422468 |
Dallas Disposal Co.
|
|
Oregon
|
|
93-0686961 |
Grants Pass Sanitation, Inc.
|
|
Oregon
|
|
93-1149631 |
Keller Drop Box, Inc.
|
|
Oregon
|
|
93-0775047 |
McInnis Waste Systems, Inc.
|
|
Oregon
|
|
93-1100152 |
Peltier Real Estate Company
|
|
Oregon
|
|
93-0622305 |
Portable Storage Co.
|
|
Oregon
|
|
93-0677497 |
Rossman Sanitary Service, Inc.
|
|
Oregon
|
|
93-0524701 |
Source Recycling, Inc.
|
|
Oregon
|
|
93-0676813 |
United Disposal Service, Inc.
|
|
Oregon
|
|
93-0625022 |
Valley Landfills, Inc.
|
|
Oregon
|
|
93-0623113 |
Waste Control Systems, Inc.
|
|
Oregon
|
|
93-0608475 |
WDTR, Inc.
|
|
Oregon
|
|
93-0970896 |
Willamette Resources, Inc.
|
|
Oregon
|
|
93-0636217 |
Allied Acquisition Pennsylvania, Inc.
|
|
Pennsylvania
|
|
52-2038566 |
Allied Waste Systems of Pennsylvania, LLC
|
|
Pennsylvania
|
|
86-1020961 |
BFI Transfer Systems of Pennsylvania, LLC
|
|
Pennsylvania
|
|
86-1024460 |
BFI Waste Services of Pennsylvania, LLC
|
|
Pennsylvania
|
|
86-1020962 |
Greenridge Reclamation, LLC
|
|
Pennsylvania
|
|
86-1026336 |
Greenridge Waste Services, LLC
|
|
Pennsylvania
|
|
86-1026337 |
McCusker Recycling, Inc.
|
|
Pennsylvania
|
|
23-2558840 |
New Morgan Landfill Company, Inc.
|
|
Pennsylvania
|
|
23-2645522 |
Flint Hill Road, LLC
|
|
South Carolina
|
|
86-1014460 |
NationsWaste Catawba Regional Landfill, Inc.
|
|
South Carolina
|
|
58-2376936 |
Allied Waste Industries of Tennessee, Inc.
|
|
Tennessee
|
|
62-1589834 |
Barker Brothers Waste, Incorporated
|
|
Tennessee
|
|
62-1119788 |
Browning-Ferris Industries of Tennessee, Inc.
|
|
Tennessee
|
|
62-0566788 |
Madison County Development, LLC
|
|
Tennessee
|
|
20-1187869 |
Northwest Tennessee Disposal Corporation
|
|
Tennessee
|
|
22-3091901 |
Action Disposal, Inc.
|
|
Texas
|
|
74-2679234 |
Desarrollo del Rancho La Gloria TX, LP
|
|
Texas
|
|
81-0636822 |
El Centro Landfill, L.P.
|
|
Texas
|
|
75-3088544 |
Frontier Waste Services, L.P.
|
|
Texas
|
|
76-0604271 |
Republic Waste Services of Texas, Ltd.
|
|
Texas
|
|
65-0963067 |
South Central Texas Land Co. TX, LP
|
|
Texas
|
|
81-0363867 |
Total Roll-Offs, L.L.C.
|
|
Texas
|
|
74-2895613 |
|
|
|
|
|
|
|
State or Other Jurisdiction of |
|
I.R.S. |
|
|
Incorporation or |
|
Employer |
Guarantor |
|
Organization |
|
Identification Number |
|
Allied Waste Transfer Services of Utah, Inc.
|
|
Utah
|
|
20-2298486 |
ECDC Environmental, L.C.
|
|
Utah
|
|
87-0507247 |
Frontier Waste Services (Utah), LLC
|
|
Utah
|
|
|
Wasatch Regional Landfill, Inc.
|
|
Utah
|
|
20-0960443 |
623 Landfill, Inc.
|
|
Virginia
|
|
59-3800507 |
Cumberland County Development Company, LLC
|
|
Virginia
|
|
20-1645866 |
Obscurity Land Development, LLC
|
|
Virginia
|
|
20-5046288 |
Republic Services of Virginia, LLC
|
|
Virginia
|
|
65-0976277 |
Rabanco Companies
|
|
Washington
|
|
91-1312267 |
Rabanco Recycling, Inc.
|
|
Washington
|
|
91-1406993 |
Rabanco, Ltd.
|
|
Washington
|
|
91-0714701 |
WJR Environmental, Inc.
|
|
Washington
|
|
91-1525369 |
Sandy Hollow Landfill Corp.
|
|
West Virginia
|
|
22-3017041 |
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-4 is being filed for the sole purpose
of filing additional exhibits to the registration statement. No other changes have been made to
the registration statement. Accordingly, this amendment consists only of the facing page, this
explanatory note and Part II of the registration statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
The following summary is qualified in its entirety by reference to the complete text of the
statutes referred to below and to our Amended and Restated Certificate of Incorporation, as amended
(the Certificate), and by-laws.
The Certificate provides that we shall indemnify, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law (the DGCL), each person who is involved in any
litigation or other proceeding because such person is or was a Republic director or officer or was
serving at our request as a director, officer, employee or agent of another enterprise, against all
expense (including attorneys fees), loss or liability reasonably incurred or suffered in
connection therewith. The Certificate provides that a person entitled to indemnification under the
Certificate shall be paid expenses incurred in defending any proceeding in advance of its final
disposition upon our receipt of an undertaking, by or on behalf of the director or officer, to
repay all amounts so advanced if it is ultimately determined that such director or officer is not
entitled to indemnification.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of the
corporation against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit or proceeding
brought by reason of the fact that such person is or was a director or officer of the corporation,
if such person acted in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, if he had no reason to believe his conduct was unlawful. In a derivative action (i.e.,
one brought by or on behalf of the corporation), however, indemnification may be made only for
expenses, actually and reasonably incurred by any director or officer in connection with the
defense or settlement of such action or suit, if such person acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been adjudged to be liable
to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court
in which the action or suit was brought shall determine that the defendant is fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate eliminates the liability of a
director to the corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liabilities arising (i) from any breach of the directors duty of loyalty
to the corporation or its stockholders, (ii) from acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
or (iv) from any transaction from which the director derived an improper personal benefit.
We may purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of Republic or another corporation, partnership, joint venture, trust or
other enterprise. Under an insurance policy maintained by us, our directors and officers and the
directors and officers of each of the co-registrants are insured, within the limits and subject to
the limitations of the policy, against certain expenses in connection with the defense of certain
claims, actions, suits or proceedings, and certain liabilities which might be imposed as a result
of such claims, actions, suits or proceedings, which may be brought against them by reason of being
or having been such directors or officers.
II-1
Alabama Registrants:
(a) Alabama Recycling Services, Inc. and GEK, Inc. are incorporated under the laws of Alabama.
Division E of Article 8 of the Alabama Business Corporation Act authorizes a court to award,
or a corporations board of directors to grant, indemnity to an officer, director, employee or
agent of the corporation under certain circumstances and subject to certain limitations.
Section 10-2B-8.42(d) of the Alabama Business Corporation Act provides that an officer of a
corporation shall not be liable for any action taken as an officer or any failure to take any
action if such officer performed the duties of his or her office (i) in good faith, (ii) with the
care an ordinarily prudent person in a like position would exercise under similar circumstances and
(iii) in a manner he or she reasonably believes to be in the best interests of the corporation.
The bylaws of each of the Alabama corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Alabama corporation registrants also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the
II-2
corporation would have the power or the obligation to indemnify him or her against such liability
under the bylaws of the corporation.
(b) Autauga County Landfill, LLC is organized as a limited liability company under the laws of
Alabama.
Section 4 of the Alabama Limited Liability Company Act permits a limited liability company to
indemnify and hold harmless any person who is or was a member, manager or employee of the limited
liability company under certain circumstances and subject to certain limitations.
The operating agreement of Autauga County Landfill, LLC provides that the company shall
defend, indemnify and save harmless its sole member, its sole members officers and directors, and
the officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Arizona Registrants:
(a) Allied Waste Industries (Arizona), Inc., Allied Waste Industries (Southwest), Inc., Apache
Junction Landfill Corporation, Central Arizona Transfer, Inc., Mesa Disposal, Inc., Midway
Development Company, Inc., Pinal County Landfill Corp., Summit Waste Systems, Inc. and Tri-State
Refuse Corporation are incorporated under the laws of Arizona.
Sections 10-850 et seq. of the Arizona Business Corporation Act authorize a court to award, or
a corporations board of directors to grant, indemnity to officers and directors of the corporation
under certain circumstances and subject to certain limitations.
Section 10-202(B)(1) of the Arizona Business Corporation Act permits a corporation to provide
in its articles of incorporation that a director shall not be personally liable to the corporation
or its shareholders for monetary damages for any action taken or any failure to take any action as
a director, subject to certain limitations. Section 10-842(D) of the Arizona Business Corporation
Act provides that an officer of a corporation shall not be liable for any action taken as an
officer or any failure to take any action if such officers duties were performed (i) in good
faith, (ii) with the care an ordinarily prudent person in a like position would exercise under
similar circumstances and (iii) in a manner such officer reasonably believes to be in the best
interests of the corporation.
The articles of incorporation of Allied Waste Industries (Arizona), Inc. provide for
indemnification to the fullest extent permissible by law, by the bylaws of the corporation or by
agreement.
The articles of incorporation of Allied Waste Industries (Arizona), Inc. provide that a
director of the corporation shall not be personally liable to the corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director, except for liability for (i) the
amount of a financial benefit received by a director to which the director is not entitled, (ii) an
intentional infliction of harm on the corporation or the shareholders, (iii) a violation of Section
10-833 of the Arizona Business Corporation Act relating to unlawful distributions and (iv) an
intentional violation of criminal law.
The articles of incorporation of each of Summit Waste Systems, Inc. and Midway Development
Company, Inc. provide that the corporation shall indemnify any person who incurs expenses or
liabilities by reason of the fact that such person is or was an officer, director, employee or
agent of the corporation or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise. This indemnification shall be
mandatory in all circumstances in which indemnification is permitted by law.
II-3
The articles of incorporation of each of Summit Waste Systems, Inc. and Midway Development
Company, Inc. provide that, to the fullest extent permitted by the Arizona Business Corporation
Act, a director of the corporation shall not be liable to the corporation or its shareholders for
monetary damages for any action taken or any failure to take any action as a director.
The bylaws of each of Midway Development Company, Inc. and Summit Waste Systems, Inc. provide
that the corporation shall indemnify, to the fullest extent provided by law, any person who incurs
expenses or liabilities by reason of the fact he or she is or was an officer, director, employee or
agent of the corporation or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise.
The bylaws of each of Central Arizona Transfer, Inc. and Mesa Disposal, Inc. provide that the
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Central Arizona Transfer, Inc. and Mesa Disposal, Inc. also provide that
any indemnification (unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
II-4
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of any of Allied Waste Industries (Southwest), Inc., Apache Junction Landfill Corporation,
Pinal County Landfill Corp. or Tri-State Refuse Corporation.
(b) Allied Waste Systems of Arizona, LLC, Cactus Waste Systems, LLC and Republic Services of
Arizona Hauling, LLC are organized as limited liability companies under the laws of Arizona.
Section 29-610(A)(13) of the Arizona Limited Liability Company Act permits a limited liability
company to indemnify a member, manager, employee, officer, agent or any other person.
The operating agreement of each of Cactus Waste Systems, LLC and Republic Services of Arizona
Hauling, LLC provides that the company shall defend, indemnify and save harmless the sole member,
its officers and any officers of the company from and against all losses, claims, costs,
liabilities and damages incurred by such person by reason of any act performed or omitted to be
performed by such person in connection with the business of the company, including attorneys fees
incurred by such person in connection with the defense of any action based on any such act or
omission; provided, however, no such person shall be indemnified from any liability for fraud, bad
faith, willful misconduct or gross negligence.
The operating agreement of Allied Waste Systems of Arizona, LLC provides for identical
indemnification as described in the preceding paragraph, except that such indemnification is also
provided to the directors of the sole member of the company.
California Registrants:
(a) A D A J Corporation, Allied Waste of California, Inc., Atlas Transport, Inc., Bay Collection
Services, Inc., Bay Environmental Management, Inc., Bay Landfills, Inc., Bay Leasing Company, Inc.,
Berkeley Sanitary Service, Inc., BLT Enterprises of Oxnard, Inc., Borrego Landfill, Inc.,
Browning-Ferris Industries of California, Inc., Charter Evaporation Resource Recovery Systems,
Crockett Sanitary Service, Inc., Delta Container Corporation, Delta Paper Stock, Co., Elder Creek
Transfer & Recovery, Inc., Forward, Inc., Golden Bear Transfer Services, Inc., Imperial Landfill,
Inc., Independent Trucking Company, International Disposal Corp. of California, Keller Canyon
Landfill Company, La Canada Disposal Company, Inc., Lathrop Sunrise Sanitation Corporation, Otay
Landfill, Inc., Palomar Transfer Station, Inc., Perdomo & Sons, Inc., Ramona Landfill, Inc.,
RI/Alameda Corp., Richmond Sanitary Service, Inc., San Marcos NCRRF, Inc., Solano Garbage Company,
Sunrise Sanitation Service, Inc., Sunset Disposal Service, Inc., Sycamore Landfill, Inc., West
Contra Costa Energy Recovery Company, West Contra Costa Sanitary Landfill, Inc., West County
Landfill, Inc., West County Resource Recovery, Inc. and Zakaroff Services are incorporated under
the laws of California.
Section 317 of the California Corporations Code authorizes a court to award, or a
corporations board of directors to grant, indemnity to any agent of the corporation under certain
circumstances and subject to certain limitations.
Section 204(a)(10) of the California Corporations Code permits a corporation to provide in its
articles of incorporation that a director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of such directors duties, subject
to certain limitations.
The articles of incorporation of each of BLT Enterprises of Oxnard, Inc., Keller Canyon
Landfill Company and Perdomo & Sons, Inc. provide that the corporation is authorized to provide
indemnification of agents for breach of duty to the corporation and its shareholders through bylaw
provisions or through agreements with the agents, or both, in excess of the indemnification
otherwise permitted by Section 317 of the California Corporations Code, subject to the limits on
such excess indemnification set forth in Section 204 of the California Corporations Code.
II-5
The articles of incorporation of each of BLT Enterprises of Oxnard, Inc., Borrego Landfill,
Inc., Elder Creek Transfer & Recovery, Inc., Imperial Landfill, Inc., Keller Canyon Landfill
Company, Lathrop Sunrise Sanitation Corporation, Palomar Transfer Station, Inc., Perdomo & Sons,
Inc., Otay Landfill, Inc., Ramona Landfill, Inc., San Marcos NCRRF, Inc. and Sycamore Landfill,
Inc. provide that the liability of directors of the corporation for monetary damages shall be
eliminated to the fullest extent permissible under California law.
The articles of incorporation of each of Elder Creek Transfer & Recovery, Inc. and Imperial
Landfill, Inc. provide that the corporation is authorized to indemnify the directors and officers
of the corporation to the fullest extent permissible under California law. The corporation is
authorized to provide indemnification of agents through bylaw provisions, agreements with agents,
vote of shareholders or disinterested directors or otherwise, in excess of that expressly permitted
by Section 317 of the California Corporations Code for those agents of the corporation for breach
of duty to the corporation and its stockholders, subject to limitations set forth in Section 204.
The articles of incorporation of Lathrop Sunrise Sanitation Corporation provide that the
corporation is authorized to provide indemnification of agents through bylaw provisions, agreements
with agents, vote of shareholders or disinterested directors or otherwise, to the fullest extent
permissible under California law.
The bylaws of each of A D A J Corporation, Atlas Transport, Inc., Bay Collection Services,
Inc., Bay Environmental Management, Inc., Bay Landfills, Inc., Bay Leasing Company, Inc., Berkeley
Sanitary Service, Inc., BLT Enterprises of Oxnard, Inc., Browning-Ferris Industries of California,
Inc., Charter Evaporation Resource Recovery Systems, Crockett Sanitary Service, Inc., Elder Creek
Transfer & Recovery, Inc., Forward, Inc., Golden Bear Transfer Services, Inc., Imperial Landfill,
Inc., International Disposal Corp. of California, Keller Canyon Landfill Company, La Canada
Disposal Company, Inc., Lathrop Sunrise Sanitation Corporation, Otay Landfill, Inc., Perdomo &
Sons, Inc., RI/Alameda Corp., Richmond Sanitary Service, Inc., Solano Garbage Company, Sycamore
Landfill, Inc., West Contra Costa Energy Recovery Company, West Contra Costa Sanitary Landfill,
Inc., West County Landfill, Inc., West County Resource Recovery, Inc. and Zakaroff Services provide
that the corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding (other than an action by
or in the right of the corporation) by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the California corporation registrants listed in the preceding paragraph
also provide that any indemnification (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (i) by the board of directors by
II-6
a majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion or (iii) by
the stockholders. Expenses incurred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation according to the bylaws of the
corporation. The corporation may purchase and maintain insurance on behalf of any person who is or
was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
any liability asserted against or incurred by such person in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power or the obligation to
indemnify him or her against such liability under the bylaws of the corporation.
The bylaws of each of Delta Container Corporation, Independent Trucking Company, Sunrise
Sanitation Service, Inc. and Sunset Disposal Service, Inc. provide that the board may, in its
discretion, indemnify any director, officer, employee or other agent of the corporation against
expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in a
proceeding (including a derivative action on behalf of the corporation) to which that person was or
is threatened to be made a party by reason of the fact that such person was or is an agent of the
corporation, but only to the extent allowed by the California Corporations Code and subject to
director or shareholder approval as required by such code. In no event shall the corporation
indemnify any such director or officer against any liability or expense by reason of willful
malfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of such persons office. The corporation may advance to each director or officer the
expenses incurred in defending any proceeding referred to in the bylaws of the corporation prior to
the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount unless it shall be determined ultimately that the director
or officer is entitled to be indemnified as authorized by the bylaws of the company.
The bylaws of Delta Paper Stock, Co. provide that the corporation shall, to the maximum extent
permitted by the California Corporations Code, indemnify each of its agents against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred in connection with
any proceeding arising by reason of the fact any such person is or was an agent of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Waste of California, Inc., Borrego Landfill, Inc., Palomar Transfer Station, Inc.,
Ramona Landfill, Inc. or San Marcos NCRRF, Inc.
(b) Allied Waste Transfer Services of California, LLC and San Diego Landfill Systems, LLC are
organized as limited liability companies under the laws of California.
Section 17003(l) of the California Limited Liability Company Act permits a limited liability
company to indemnify any person.
The operating agreement of each of the California limited liability company registrants
provides that the company shall defend, indemnify and save harmless the sole member, its officers
and directors, and any officers of the company, from and against all losses, claims, costs,
liabilities and damages incurred by such person by reason of any act performed or omitted to be
performed by such person in connection with the business of the company, including attorneys fees
incurred by such person in connection with the defense of any action based on any such act or
omission; provided, however, no such person shall be indemnified from any liability for fraud, bad
faith, willful misconduct or gross negligence.
II-7
(c) Oceanside Waste & Recycling Services is organized as a general partnership under the laws of
California.
Section 16401(c) of the California Uniform Partnership Act authorizes a general partnership to
indemnify its partners under certain circumstances and subject to certain limitations.
There is no provision for indemnification of officers and directors in the partnership
agreement of Oceanside Waste & Recycling Services. The partnership agreement provides that the
partners shall continue to maintain general liability insurance in such amounts as are reasonable
for the business and services conducted by the partnership.
Colorado Registrants:
(a) Bunting Trash Service, Inc. and Denver RL North, Inc. are incorporated under the laws of
Colorado.
Article 109 of the Colorado Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers, directors, employees, fiduciaries
or agents of the corporation under certain circumstances and subject to certain limitations.
Section 7-108-401(4) of the Colorado Business Corporation Act provides that a director or
officer of the corporation shall not be liable to the corporation or its shareholders for any
action the director or officer takes or omits to take as a director of officer if, in connection
with such action or omission, the director or officer performed the duties of the position (i) in
good faith, (ii) with the care an ordinarily prudent person in a like position would exercise under
similar circumstances and (iii) in a manner the director or officer reasonably believes to be in
the best interests of the corporation.
The bylaws of each of Bunting Trash Service, Inc and Denver RL North, Inc. provide that the
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Bunting Trash Service, Inc. and Denver RL North, Inc. also provide that
any indemnification (unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if
II-8
such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the stockholders. Expenses
incurred by a director or officer in defending or investigating a threatened or pending action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she is not entitled to
be indemnified by the corporation according to the bylaws of the corporation. The corporation may
purchase and maintain insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power or the obligation to indemnify him or her
against such liability under the bylaws of the corporation.
(b) Allied Waste Systems of Colorado, LLC, Frontier Waste Services (Colorado), LLC, Republic
Services of Colorado Hauling, LLC and Republic Services of Colorado I, LLC are organized as limited
liability companies under the laws of Colorado.
Section 407 of the Colorado Limited Liability Company Act permits a limited liability company
to indemnify a member or manager of the company under certain circumstances and subject to certain
limitations.
The operating agreement of each of Frontier Waste Services (Colorado), LLC, Republic Services
of Colorado Hauling, LLC and Republic Services of Colorado I, LLC provides that the company shall
defend, indemnify and save harmless the sole member, its officers, and any officers of the company
from and against all losses, claims, costs, liabilities and damages incurred by such person by
reason of any act performed or omitted to be performed by such person in connection with the
business of the company, including attorneys fees incurred by such person in connection with the
defense of any action based on any such act or omission; provided, however, no such person shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
The operating agreement of Allied Waste Systems of Colorado, LLC provides for identical
indemnification as described in the preceding paragraph, except that such indemnification is also
provided to the directors of the sole member of the company.
Delaware Registrants:
(a) Allied Enviroengineering, Inc., Allied Green Power, Inc., Allied Nova Scotia, Inc., Allied
Waste Alabama, Inc., Allied Waste Company, Inc., Allied Waste Holdings (Canada) Ltd., Allied Waste
Industries, Inc., Allied Waste Landfill Holdings, Inc., Allied Waste North America, Inc., Allied
Waste Rural Sanitation, Inc., Allied Waste Services of Colorado, Inc., Allied Waste Systems
Holdings, Inc., Allied Waste Systems, Inc., Allied Waste Transportation, Inc., American Disposal
Services of Illinois, Inc., American Disposal Services of New Jersey, Inc., American Disposal
Services of West Virginia, Inc., American Disposal Services, Inc., American Disposal Transfer
Services of Illinois, Inc., Attwoods of North America, Inc., AWIN Leasing Company, Inc., AWIN
Management, Inc., BBCO, Inc., BFI Atlantic, Inc., BFI Energy Systems of Albany, Inc., BFI Energy
Systems of Delaware County, Inc., BFI Energy Systems of Hempstead, Inc., BFI Energy Systems of
Niagara II, Inc., BFI Energy Systems of Niagara, Inc., BFI Energy Systems of SEMASS, Inc., BFI
Energy Systems of Southeastern Connecticut, Inc., BFI International, Inc., BFI REF-FUEL, Inc., BFI
Trans River (GP), Inc., Bond County Landfill, Inc., Browning-Ferris Financial Services, Inc.,
Browning-Ferris Industries of Florida, Inc., Browning-Ferris Industries of Illinois, Inc.,
Browning-Ferris Industries of Ohio, Inc., Browning-Ferris Services, Inc., CC Landfill, Inc.,
Cocopah Landfill, Inc., Compactor Rental Systems of Delaware, Inc., Copper Mountain Landfill, Inc.,
County Disposal (Ohio), Inc., County Disposal, Inc., County Landfill, Inc., East Chicago Compost
Facility, Inc., ECDC Environmental of Humboldt County, Inc., ECDC Holdings, Inc., Environmental
Development Corp., Environtech, Inc., Evergreen Scavenger Service, Inc., General Refuse
II-9
Rolloff Corp., Georgia Recycling Services, Inc., Great Lakes Disposal Service, Inc., Liberty Waste
Holdings, Inc., Lucas County Land Development, Inc., Mountain Home Disposal, Inc., NationsWaste,
Inc., NCorp., Inc., Ohio Republic Contracts, II, Inc., Ottawa County Landfill, Inc., Republic
Services Financial LP, Inc., Republic Services Holding Company, Inc., Republic Services of
California Holding Company, Inc., Republic Services of Florida GP, Inc., Republic Services of
Florida LP, Inc., Republic Services of Indiana LP, Inc., Republic Services of Michigan Holding
Company, Inc., Republic Waste Services of Texas GP, Inc., Republic Waste Services of Texas LP,
Inc., Risk Services, Inc., Sangamon Valley Landfill, Inc., Standard Waste, Inc., Taylor Ridge
Landfill, Inc., Tennessee Union County Landfill, Inc. and Wayne County Landfill IL, Inc. are
incorporated under the laws of Delaware.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a
corporations board of directors to grant, indemnity to directors, officers, employees and agents
of the corporation under certain circumstances and subject to certain limitations.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in
its certificate of incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director, subject to certain limitations.
The certificate of incorporation of each of Allied Enviroengineering, Inc., Allied Waste
Alabama, Inc., Allied Waste Company, Inc., Allied Waste North America, Inc., AWIN Leasing Company,
Inc. and AWIN Management, Inc. provides that the corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding (other than an action by or in the right of the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The certificate of incorporation of each of the Delaware corporation registrants listed in the
preceding paragraph also provides that any indemnification (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances because such person has
met the applicable standard of conduct. Such determination shall be made (i) by the board of
directors by a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a written opinion or
(iii) by the stockholders. Expenses incurred by a director or officer in defending or investigating
a threatened or pending action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that
such person
II-10
is not entitled to be indemnified by the corporation according to the bylaws of the corporation.
The corporation may purchase and maintain insurance on behalf of any person who is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another entity or other enterprise against any liability
asserted against or incurred by such person in any such capacity, or arising out of his or her
status as such, whether or not the corporation would have the power or the obligation to indemnify
him or her against such liability under the Delaware General Corporation Law.
The certificate of incorporation of each of Allied Enviroengineering, Inc., Allied Nova
Scotia, Inc., Allied Waste Alabama, Inc., Allied Waste Company, Inc., Allied Waste Holdings
(Canada) Ltd., Allied Waste North America, Inc., Allied Waste Systems, Inc., American Disposal
Services, Inc., American Disposal Services of Illinois, Inc., American Disposal Services of New
Jersey, Inc., American Disposal Services of West Virginia, Inc., American Disposal Transfer
Services of Illinois, Inc., AWIN Leasing Company, Inc., AWIN Management, Inc., BBCO, Inc.,
Browning-Ferris Financial Services, Inc., Compactor Rental Systems of Delaware, Inc., County
Disposal, Inc., County Disposal (Ohio), Inc., County Landfill, Inc., Environtech, Inc., Georgia
Recycling Services, Inc., Mountain Home Disposal, Inc., NationsWaste, Inc., NCorp, Inc., Republic
Services Financial LP, Inc., Republic Services Holding Company, Inc., Republic Services of
California Holding Company, Inc., Republic Services of Florida GP, Inc., Republic Services of
Florida LP, Inc., Republic Services of Indiana, LP, Inc., Republic Services of Michigan Holding
Company, Inc., Republic Waste Services of Texas GP, Inc. and Republic Waste Services of Texas LP,
Inc. provides that a director of the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director except for
liability (i) for any breach of the directors duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law
relating to an unlawful payment of a dividend or unlawful stock purchase or redemption or (iv) for
any transaction from which the director derived any improper personal benefit.
The certificate of incorporation of each of Allied Green Power, Inc., Allied Waste Industries,
Inc., Allied Waste Landfill Holdings, Inc., Allied Waste Rural Sanitation, Inc., Allied Waste
Services of Colorado, Inc., Allied Waste Transportation, Inc., Bond County Landfill, Inc., CC
Landfill, Inc., Cocopah Landfill, Inc., Copper Mountain Landfill, Inc., East Chicago Compost
Facility, Inc., ECDC Environmental of Humboldt County, Inc., ECDC Holdings, Inc., Evergreen
Scavenger Service, Inc., General Refuse Rolloff Corp., Great Lakes Disposal Service, Inc., Liberty
Waste Holdings, Inc., Lucas County Land Development, Inc., Ohio Republic Contracts, II, Inc.,
Sangamon Valley Landfill, Inc., Taylor Ridge Landfill, Inc., Tennessee Union County Landfill, Inc.
and Wayne County Landfill IL, Inc. provides that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except that this provision shall not eliminate or limit the liability
of the director to the extent that such elimination or limitation of liability is expressly
prohibited by the Delaware General Corporation Law as in effect at the time of the alleged breach
of duty by such director.
The certificate of incorporation of each of Allied Nova Scotia, Inc., Allied Waste Holdings
(Canada) Ltd. and American Disposal Services, Inc. provides that, to the fullest extent authorized
by the Delaware General Corporation Law, the corporation shall indemnify any person who at any time
is or was a director or officer of the corporation and is threatened to be or is made a party to
any threatened, pending or completed action, suit or proceeding by reason of the fact that such
person is or was a director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer or other agent of any other entity against all expense,
liability and loss (including, without limitation, court costs and attorneys fees, judgments,
fines, excise taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred by such person. Expenses incurred by a director or officer of the corporation
shall be paid in advance to the fullest extent permitted by law upon an undertaking by such person
to repay all amounts so advanced if it shall ultimately be determined that such director
II-11
or officer is not entitled to indemnification. The corporation may procure insurance or other
arrangement on behalf of any such person described in this paragraph.
The certificate of incorporation of each of American Disposal Services of Illinois, Inc.,
American Disposal Services of New Jersey, Inc., American Disposal Services of West Virginia, Inc.,
American Disposal Transfer Services of Illinois, Inc., County Disposal (Ohio), Inc., County
Disposal, Inc. and County Landfill, Inc. provides that, to the fullest extent authorized by the
Delaware General Corporation Law, the corporation shall indemnify any person who at any time is or
was a director or officer of the corporation and is threatened to be or is made a party to any
threatened, pending or completed action, suit or proceeding by reason of the fact that such person
is or was a director or officer of the corporation or is or was serving at the request of the
corporation as a director or officer.
The certificate of incorporation of each of Evergreen Scavenger Service, Inc. and General
Refuse Rolloff Corp. provides that the corporation shall indemnify, to the fullest extent permitted
by law, each director or officer of the corporation who was or is made a party or is threatened to
be made a party to any threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was an authorized representative of the corporation.
The certificate of incorporation of each of Allied Waste Systems Holdings, Inc., Republic
Services Financial LP, Inc., Republic Services Holding Company, Inc., Republic Services of
California Holding Company, Inc., Republic Services of Florida GP, Inc., Republic Services of
Florida LP, Inc., Republic Services of Indiana LP, Inc., Republic Services of Michigan Holding
Company, Inc., Republic Waste Services of Texas GP, Inc. and Republic Waste Services of Texas LP,
Inc. provides that the corporation shall indemnify its officers, directors, employees and agents to
the fullest extent permitted by the Delaware General Corporation Law.
The certificate of incorporation of Ottawa County Landfill, Inc. provides that the corporation
shall have the power to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding by reason of the fact that
he or she is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with such action, suit
or proceeding if such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his or her conduct was unlawful.
The bylaws of each of Allied Enviroengineering, Inc., Allied Green Power, Inc., Allied Waste
Company, Inc., Allied Waste Holdings (Canada) Ltd., Allied Waste Industries, Inc., Allied Waste
Landfill Holdings, Inc., Allied Waste Rural Sanitation, Inc., Allied Waste Services of Colorado,
Inc., Allied Waste Systems, Inc., Allied Waste Transportation, Inc., American Disposal Services,
Inc., American Disposal Services of Illinois, Inc., American Disposal Services of New Jersey, Inc.,
American Disposal Services of West Virginia, Inc., American Disposal Transfer Services of Illinois,
Inc., Attwoods of North America, Inc., BBCO, Inc., BFI Atlantic, Inc., AWIN Leasing Company, Inc.,
AWIN Management, Inc., BFI Energy Systems of Albany, Inc., BFI Energy Systems of Delaware County,
Inc., BFI Energy Systems of Hempstead, Inc., BFI Energy Systems of Niagara II, Inc., BFI Energy
Systems of Niagara, Inc., BFI Energy Systems of SEMASS, Inc., BFI Energy Systems of Southeastern
Connecticut, Inc., BFI International, Inc., BFI REF-FUEL, Inc., BFI Trans River (GP), Inc., Bond
County Landfill, Inc., Browning-Ferris Financial Services, Inc., Browning-Ferris Industries of
Florida, Inc., Browning-Ferris Industries of Illinois, Inc., Browning-Ferris Industries of Ohio,
Inc., Browning-Ferris Services, Inc., CC Landfill, Inc., Cocopah Landfill, Inc., Compactor Rental
Systems of Delaware, Inc., Copper Mountain Landfill, Inc., County Disposal, Inc., County Disposal
(Ohio), Inc., County Landfill, Inc., East Chicago Compost Facility, Inc., ECDC Environmental of
Humboldt County, Inc., ECDC Holdings, Inc., Environmental Development Corp., Environtech, Inc.,
Evergreen Scavenger Service, Inc., General Refuse Rolloff Corp., Georgia Recycling Services, Inc.,
Great Lakes Disposal
II-12
Service, Inc., Liberty Waste Holdings, Inc., Lucas County Land Development, Inc., Mountain Home
Disposal, Inc., NCorp, Inc., Ohio Republic Contracts, II, Inc., Republic Services Holding Company,
Inc., Republic Services of California Holding Company, Inc., Republic Services of Florida GP, Inc.,
Republic Services of Florida LP, Inc., Republic Services of Indiana LP, Inc., Republic Services of
Michigan Holding Company, Inc., Republic Waste Services of Texas GP, Inc., Republic Waste Services
of Texas LP, Inc., Risk Services, Inc., Sangamon Valley Landfill, Inc., Standard Waste, Inc.,
Taylor Ridge Landfill, Inc., Tennessee Union County Landfill, Inc. and Wayne County Landfill IL,
Inc. provide that the corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the corporation) by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another entity or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against expenses (including attorneys fees) actually and reasonably
incurred by him or her in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation; except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
The bylaws of each of the Delaware corporation registrants listed in the preceding paragraph
also provide that any indemnification (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or proceeding, (ii) if
such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the stockholders. Expenses
incurred by a director or officer in defending or investigating a threatened or pending action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation according to the bylaws of the corporation. The corporation
may purchase and maintain insurance on behalf of any person who is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against any liability asserted against or
incurred by such person in any such capacity, or arising out of his or her status as such, whether
or not the corporation would have the power or the obligation to indemnify him or her against such
liability under the bylaws of the corporation.
The bylaws of Allied Nova Scotia, Inc. provide that, to the fullest extent authorized by the
Delaware General Corporation Law, the corporation shall indemnify any person who at any time is or
was a director or officer of the corporation and is threatened to be or is made a party to any
threatened, pending or completed action, suit or proceeding by reason of the fact that such person
is or was a director or officer of the corporation or is or was serving at the request of the
corporation as a director, officer or other agent of any other entity against all expense,
liability and loss (including, without limitation, court costs and attorneys fees, judgments,
fines, excise taxes or
II-13
penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by
such person. Expenses incurred by a director or officer of the corporation shall be paid in advance
to the fullest extent permitted by law upon an undertaking by such person to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is not entitled to
indemnification. The corporation may procure insurance or other arrangement on behalf of any such
person described in this paragraph.
The bylaws of Allied Waste Alabama, Inc. provide that, to the fullest extent authorized by the
Delaware General Corporation Law, the corporation shall indemnify any person who at any time is or
was a director of the corporation and is threatened to be or is made a party to any threatened,
pending or completed action, suit or proceeding by reason of the fact that such person is or was a
director or officer of the corporation or is or was serving at the request of the corporation as a
director, officer or other agent of any other entity against all expense, liability and loss
(including, without limitation, court costs and attorneys fees, judgments, fines, excise taxes or
penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such
person so long as a majority of a quorum of disinterested directors, the stockholders or legal
counsel through a written opinion determines that such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of the corporation, and
in the case of a criminal proceeding, such person had no reasonable cause to believe his or her
conduct was unlawful. Expenses incurred by a director or officer of the corporation shall be paid
in advance to the fullest extent permitted by law upon an undertaking by such person to repay all
amounts so advanced if it shall ultimately be determined that such director or officer is not
entitled to indemnification. The corporation may procure insurance or other arrangement on behalf
of any such person described in this paragraph.
The bylaws of Allied Waste North America, Inc. provide that each director, officer and former
director and officer of the corporation, and any person who may have served or who may hereafter
serve at the request of the corporation as a director or officer of another corporation in which it
owns shares of capital stock or of which it is a creditor, is hereby indemnified by the corporation
against expenses actually and necessarily incurred by such person in connection with the defense of
any action, suit or proceeding in which such person is made a party by reason of being or having
been such director or officer, except in relation to matters as to which such person shall be
adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the
performance of duty.
The bylaws of NationsWaste, Inc. provide that each person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or completed action,
suit or proceedings by reason of the fact that he or she is or was a director or officer of the
corporation or is or was serving at the request of the corporation as director or officer or
trustee of another entity or other enterprise shall be indemnified and held harmless by the
corporation to the fullest extent permitted by law.
The bylaws of Ottawa County Landfill, Inc. provide that the board of directors of the
corporation may, to the fullest extent permitted by the General Corporation Law of Delaware,
indemnify any and all persons who it shall have the power to indemnify against any and all of the
expenses, liabilities or other matters.
The bylaws of Republic Services Financial LP, Inc. provide that each person who is or was a
director or officer of the corporation and each person who serves or served at the request of the
corporation as a director or officer (or equivalent) of another entity or other enterprise shall be
indemnified by the corporation to the fullest extent authorized by the Delaware General Corporation
Law, except as to any action, suit or proceeding brought by or on behalf of the director or officer
of the corporation without prior approval of the board of directors. Each person who is or was an
employee or agent of the corporation, and each person who serves or has served at the request of
the corporation as an employee or agent of another entity or other enterprise, may be similarly
indemnified at the discretion of the board of directors. Expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding may be paid by the corporation
in advance of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be determined
II-14
that he is not entitled to be indemnified by the corporation as authorized in the bylaws of the
corporation. Such expenses incurred by other employees and agents may be so paid upon such terms
and conditions, if any, as the board of directors deems appropriate.
(b) Allied Gas Recovery Systems, L.L.C., Allied Services LLC, Allied Waste Environmental Management
Group, LLC, Allied Waste of New Jersey-New York, LLC, Allied Waste Recycling Services of New
Hampshire, LLC, Allied Waste Services of North America, LLC, Allied Waste Sycamore Landfill, LLC,
Allied Waste Systems of Indiana, LLC, Allied Waste Transfer Services of Arizona, LLC, Allied Waste
Transfer Services of Rhode Island, LLC, Anson County Landfill NC, LLC, Ariana, LLC, BFGSI, L.L.C.,
BFI Transfer Systems of Alabama, LLC, BFI Transfer Systems of DC, LLC, BFI Transfer Systems of
Georgia, LLC, BFI Transfer Systems of Maryland, LLC, BFI Transfer Systems of Mississippi, LLC, BFI
Transfer Systems of Virginia, LLC, BFI Waste Services of Tennessee, LLC, BFI Waste Services, LLC,
BFI Waste Systems of Alabama, LLC, BFI Waste Systems of Arkansas, LLC, BFI Waste Systems of
Georgia, LLC, BFI Waste Systems of Kentucky, LLC, BFI Waste Systems of Louisiana, LLC, BFI Waste
Systems of Mississippi, LLC, BFI Waste Systems of Missouri, LLC, BFI Waste Systems of North
America, LLC, BFI Waste Systems of North Carolina, LLC, BFI Waste Systems of South Carolina, LLC,
BFI Waste Systems of Tennessee, LLC, BFI Waste Systems of Virginia, LLC, Bridgeton Landfill, LLC,
Bridgeton Transfer Station, LLC, Browning-Ferris Industries, LLC, Brunswick Waste Management
Facility, LLC, Butler County Landfill, LLC, Chilton Landfill, LLC, Consolidated Disposal Service,
L.L.C., Continental Waste Industries, L.L.C., Courtney Ridge Landfill, LLC, D & L Disposal, L.L.C.,
E Leasing Company, LLC, Ellis Scott Landfill MO, LLC, Envotech-Illinois, L.L.C., Evergreen
Scavenger Service, L.L.C., Forest View Landfill, LLC, Great Plains Landfill OK, LLC, H Leasing
Company, LLC, Jefferson City Landfill, LLC, Kandel Enterprises, LLC, Lee County Landfill SC, LLC,
Lemons Landfill, LLC, Liberty Waste Services Limited, L.L.C., Liberty Waste Services of McCook,
L.L.C., Little Creek Landing, LLC, Local Sanitation of Rowan County, L.L.C., N Leasing Company,
LLC, New York Waste Services, LLC, Northeast Landfill, LLC, Packerton Land Company, L.L.C.,
Pinecrest Landfill OK, LLC, Polk County Landfill, LLC, Republic Services Group, LLC, Republic
Services of California II, LLC, Republic Services of Georgia GP, LLC, Republic Services of Georgia
LP, LLC, Republic Services of Indiana Transportation, LLC, Republic Services of New Jersey, LLC,
Republic Services of Pennsylvania, LLC, Republic Services of South Carolina, LLC, Republic Services
of Southern California, LLC, Republic Services of Wisconsin GP, LLC, Republic Services of Wisconsin
LP, LLC, Republic Services Vasco Road, LLC, Republic Waste Services of Southern California, LLC,
RITM, LLC, Rubbish Control, LLC, S Leasing Company, LLC, Sand Valley Holdings, L.L.C., Show-Me
Landfill, LLC, Southeast Landfill, LLC, Webster Parish Landfill, L.L.C. and Willow Ridge Landfill,
LLC are organized as limited liability companies under the laws of Delaware.
Section 18-108 of the Delaware Limited Liability Company Act permits a limited liability
company to indemnify any member or manager of the company from and against any and all claims and
demands whatsoever.
Section 18-1101 of the Delaware Limited Liability Company Act permits a limited liability
company to provide in its limited liability company agreement that a member, manager or other
person shall not be liable for breach of contract and breach of duties to the limited liability
company or to another member or manager or to another person that is a party to or is otherwise
bound by the limited liability company agreement, subject to certain limitations.
The operating agreement of Allied Services, LLC provides that the company shall indemnify,
defend and hold harmless any manager or officer of the company or their affiliates or any member,
to the extent of the companys assets, from and against any liability, damage, cost, expense, loss,
claim or judgment incurred by such person arising out of any claim based upon acts performed or
omitted to be performed by such person in connection with the business of the company, including,
without limitation, attorneys fees and costs incurred by such person in the settlement or defense
of such claim; provided that no such person shall be indemnified for claims based upon acts
performed or omitted in breach of the operating agreement of the company or that constitute bad
faith, fraud, willful
II-15
misconduct or gross negligence. The manager of the company may, in its discretion, procure, at the
expense of the company, errors and omissions insurance coverage for the manager and officers of the
company.
The operating agreement of Allied Services, LLC also provides that no manager or officer of
the company or their affiliates or any member shall be liable to the company or the other members
for actions taken in good faith by such person in connection with the company or its business;
provided that such person shall, in all instances, remain liable for acts in breach of the
operating agreement of the company or that constitute bad faith, fraud, willful misconduct or gross
negligence (except to the extent the company is compensated for the same by insurance coverage
maintained by the company).
The operating agreement of each of Allied Waste Sycamore Landfill, LLC, BFI Transfer Systems
of Alabama, LLC, BFI Transfer Systems of DC, LLC, BFI Transfer Systems of Georgia, LLC, BFI
Transfer Systems of Maryland, LLC, BFI Transfer Systems of Mississippi, LLC, BFI Transfer Systems
of Virginia, LLC, BFI Waste Services of Tennessee, LLC, BFI Waste Systems of Alabama, LLC, BFI
Waste Systems of Arkansas, LLC, BFI Waste Systems of Georgia, LLC, BFI Waste Systems of Kentucky,
LLC, BFI Waste Systems of Louisiana, LLC, BFI Waste Systems of Mississippi, LLC, BFI Waste Systems
of Missouri, LLC, BFI Waste Systems of North Carolina, LLC, BFI Waste Systems of South Carolina,
LLC, BFI Waste Systems of Tennessee, LLC, BFI Waste Systems of Virginia, LLC, Chilton Landfill,
LLC, Consolidated Disposal Service, L.L.C., Courtney Ridge Landfill, LLC, Forest View Landfill,
LLC, Kandel Enterprises, LLC and Willow Ridge Landfill, LLC provides that the company shall defend,
indemnify and save harmless the sole member, its officers, and any officers of the company from and
against all losses, claims, costs, liabilities and damages incurred by such person by reason of any
act performed or omitted to be performed by such person in connection with the business of the
company, including attorneys fees incurred by such person in connection with the defense of any
action based on any such act or omission; provided, however, no such person shall be indemnified
from any liability for fraud, bad faith, willful misconduct or gross negligence.
The operating agreement of each of Allied Gas Recovery Systems, L.L.C., Allied Waste
Environmental Management Group, LLC, Allied Waste of New Jersey-New York, LLC, Allied Waste
Recycling Services of New Hampshire, LLC, Allied Waste Services of North America, LLC, Allied Waste
Systems of Indiana, LLC, Allied Waste Transfer Services of Arizona, LLC, Allied Waste Transfer
Services of Rhode Island, LLC, BFGSI, L.L.C., BFI Waste Services, LLC, BFI Waste Systems of North
America, LLC, Bridgeton Landfill, LLC, Bridgeton Transfer Station, LLC, Browning-Ferris Industries,
LLC, Brunswick Waste Management Facility, LLC, Butler County Landfill, LLC, D & L Disposal, L.L.C.,
Envotech-Illinois L.L.C., Evergreen Scavenger Service, L.L.C., Jefferson City Landfill, LLC, Lemons
Landfill, LLC, Liberty Waste Services of McCook, L.L.C., Little Creek Landing, LLC, New York Waste
Services, LLC, Northeast Landfill, LLC, Packerton Land Company, L.L.C., Polk County Landfill, LLC,
Sand Valley Holdings, L.L.C., Show-Me Landfill, LLC, and Southeast Landfill, LLC provides for
identical indemnification as described in the preceding paragraph, except that such indemnification
is also provided to the directors of the sole member of the company.
The operating agreement of each of Anson County Landfill NC, LLC, Ellis Scott Landfill MO,
LLC, Great Plains Landfill OK, LLC, Lee County Landfill SC, LLC and Pinecrest Landfill OK, LLC
provides that the company shall defend, indemnify and save harmless any member and the officers and
directors of any member from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the company, including attorneys fees incurred by them in connection with the
defense of any action based on any such act or omission; provided, however, no such person shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
The operating agreement of each of E Leasing Company, LLC, H Leasing Company, LLC, N Leasing
Company, LLC and S Leasing Company, LLC provides that the company shall indemnify, save harmless
and pay all damages of the manager, the special purpose manager and any member or any stockholders,
directors, members,
II-16
officers, employees or agents of any of them relating to any damages incurred by reason of any act
performed or omitted to be performed by such person in connection with the business of the company,
including reasonable attorneys fees incurred by such person in connection with the defense of any
action based on any such act or omission, which attorneys fees may be paid as incurred; provided
that no member or manager shall be indemnified for any liability from fraud, willful misconduct or
gross negligence. Such person shall provide an undertaking to repay the indemnification payment
made by the company to such person if such person is found by a final nonappealable judgment not to
be entitled to indemnification.
The operating agreement of each of E Leasing Company, LLC, H Leasing Company, LLC, N Leasing
Company, LLC and S Leasing Company, LLC also provides that the manager shall perform his or her
duties under the operating agreement in a manner he or she believes to be in the best interests of
the company, and shall be under no fiduciary duty to the members, the special purpose manager, any
creditor of the company or any other person. A person who so performs such duties shall not have
any liability by reason of being or having been a manager of the company.
There is no provision for indemnification or insurance in the certificate of formation or
operating agreement of Ariana, LLC, Continental Waste Industries, L.L.C., Liberty Waste Services
Limited, L.L.C., Local Sanitation of Rowan County, L.L.C., Republic Services Group, LLC, Republic
Services of California II, LLC, Republic Services of Georgia GP, LLC, Republic Services of Georgia
LP, LLC, Republic Services of Indiana Transportation, LLC, Republic Services of New Jersey, LLC,
Republic Services of Pennsylvania, LLC, Republic Services of South Carolina, LLC, Republic Services
of Southern California, LLC, Republic Services of Wisconsin GP, LLC, Republic Services of Wisconsin
LP, LLC, Republic Services Vasco Road, LLC, Republic Waste Services of Southern California, LLC,
RITM, LLC, Rubbish Control, LLC or Webster Parish Landfill, L.L.C.
(c) Abilene Landfill TX, LP, BFI Energy Systems of Southeastern Connecticut, Limited Partnership,
BFI Transfer Systems of Texas, LP, BFI Waste Services of Indiana, LP, BFI Waste Services of Texas,
LP, BFI Waste Systems of Indiana, LP, Blue Ridge Landfill TX, LP, Brenham Total Roll-Offs, LP,
Camelot Landfill TX, LP, Cefe Landfill TX, LP, Crow Landfill TX, L.P., Ellis County Landfill TX,
LP, Forth Worth Landfill TX, LP, Galveston County Landfill TX, LP, Giles Road Landfill TX, LP,
Golden Triangle Landfill TX, LP, Greenwood Landfill TX, LP, Gulf West Landfill TX, LP, Itasca
Landfill TX, LP, Kerrville Landfill TX, LP, Lewisville Landfill TX, LP, Mars Road TX, LP, McCarty
Road Landfill TX, LP, Mesquite Landfill TX, LP, Mexia Landfill TX, LP, Panama Road Landfill, TX,
L.P., Pine Hill Farms Landfill TX, LP, Pleasant Oaks Landfill TX, LP, Republic Services Financial,
Limited Partnership, Republic Services of Florida, Limited Partnership, Republic Services of
Georgia, Limited Partnership, Republic Services of Indiana, Limited Partnership, Republic Services
of Wisconsin, Limited Partnership, Rio Grande Valley Landfill TX, LP, Royal Oaks Landfill TX, LP,
RWS Transport, L.P., Southwest Landfill TX, LP, Tessman Road Landfill TX, LP, Turkey Creek Landfill
TX, LP, Victoria Landfill TX, LP and Whispering Pines Landfill TX, LP are organized as limited
partnerships under the laws of Delaware.
Section 15-110 of the Delaware Revised Uniform Partnership Act permits a partnership to
indemnify any partner or other person from and against any and all claims and demands whatsoever.
Section 15-103(f) of the Delaware Revised Uniform Partnership Act permits a partnership to
provide in its partnership agreement that the partner or other person shall not be liable for
breach of contract and breach of duties to the partnership or to another partner or to another
person that is a party to or is otherwise bound by the partnership agreement, subject to certain
limitations.
The agreement of limited partnership of each of Abilene Landfill TX, LP, BFI Energy Systems of
Southeastern Connecticut, Limited Partnership, BFI Transfer Systems of Texas, LP, BFI Waste
Services of Indiana, LP, BFI Waste Services of Texas, LP, BFI Waste Systems of Indiana, LP, Blue
Ridge Landfill TX, LP, Brenham Total Roll-
II-17
Offs, LP, Camelot Landfill TX, LP, Cefe Landfill TX, LP, Crow Landfill TX, L.P., Ellis County
Landfill TX, LP, Forth Worth Landfill TX, LP, Galveston County Landfill TX, LP, Giles Road Landfill
TX, LP, Golden Triangle Landfill TX, LP, Greenwood Landfill TX, LP, Gulf West Landfill TX, LP,
Itasca Landfill TX, LP, Kerrville Landfill TX, LP, Lewisville Landfill TX, LP, Mars Road TX, LP,
McCarty Road Landfill TX, LP, Mesquite Landfill TX, LP, Mexia Landfill TX, LP, Panama Road
Landfill, TX, L.P., Pine Hill Farms Landfill TX, LP, Pleasant Oaks Landfill TX, LP, Rio Grande
Valley Landfill TX, LP, Royal Oaks Landfill TX, LP, Southwest Landfill TX, LP, Tessman Road
Landfill TX, LP, Turkey Creek Landfill TX, LP, Victoria Landfill TX, LP and Whispering Pines
Landfill TX, LP provides that the partnership shall defend, indemnify and save harmless the
partners and their officers and directors from and against all losses, claims, costs, liabilities
and damages incurred by them by reason of any act performed or omitted to be performed by them in
connection with the business of the partnership, including attorneys fees incurred by them in
connection with the defense of any action based on any such act or omission; provided, however, no
person shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
The agreement of limited partnership of each of Republic Services of Florida, Limited
Partnership, Republic Services of Georgia, Limited Partnership, Republic Services of Indiana,
Limited Partnership, Republic Services of Wisconsin, Limited Partnership and RWS Transport, L.P.
provides that to the fullest extent permitted by law, the partnership shall indemnify and hold
harmless the general partner, its affiliates and all directors, officers, shareholders, partners,
employees, representatives and agents of the general partner and its affiliates and all officers,
employees, representatives and agents of the partnership and its affiliates from and against any
and all losses, claims, demands, liabilities, expenses (including all fees and expenses),
judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative, in which such person may be
involved, or threatened to be involved, as a party or otherwise, by reason of its management or the
affairs of the partnership, or the general partner or its status as a general partner, an affiliate
thereof, or partner, director, officer, stockholder, employee, representative or agent thereof or
of the partnership or a person serving at the request of the partnership, the general partner or
any affiliate thereof in another entity in a similar capacity, which relates to or arises out of
the partnership, its property, its businesses or affairs. Such person shall not be entitled to
indemnification with respect to any claim, issue or matter in which it has engaged in conduct that
constitutes fraud, willful misconduct, bad faith or gross negligence; provided, however, that a
court of competent jurisdiction may determine upon application that, despite such conduct, in view
of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such liabilities and expenses as the court may deem proper. Expenses shall be
advanced by the partnership prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the partnership of an undertaking by or on behalf of such person to
repay such amount if it shall be determined that such person is not entitled to be indemnified as
authorized in the companys agreement of limited partnership. The general partner and the
partnership may purchase and maintain insurance on behalf of any person against any liability that
may be asserted against or expenses that may be incurred by such person in connection with
activities of the partnership, regardless of whether the partnership would have the power to
indemnify such person against such liability under the provisions of the agreement of limited
partnership of the company.
The agreement of limited partnership of each of Republic Services of Florida, Limited
Partnership, Republic Services of Georgia, Limited Partnership, Republic Services of Indiana,
Limited Partnership, Republic Services of Wisconsin, Limited Partnership and RWS Transport, L.P.
provides that neither the general partner, its affiliates nor any of their respective officers,
directors, shareholders, partners, employees, representatives or agents nor any officer, employee,
representative or agent of the partnership and its affiliates shall be liable to the partnership or
any partner for any act or omission (in relation to the partnership, the partnership agreement, any
related document or any transaction or investment contemplated hereby or thereby) taken or omitted
in good faith by such person and in the reasonable belief that such act or omission is in or is not
contrary to the best interests of the partnership and is
II-18
within the scope of authority granted to such person by the partnership agreement, provided that
such act or omission does not constitute fraud, willful misconduct, bad faith or gross negligence.
There is no provision for indemnification or insurance in the certificate of limited
partnership or agreement of limited partnership of BFI Energy Systems of Southeastern Connecticut,
Limited Partnership or Republic Services Financial, Limited Partnership.
Florida Registrants:
(a) Delta Dade Recycling Corp., Delta Resources Corp., Delta Site Development Corp., Delta Waste
Corp., Envirocycle, Inc., Gulfcoast Waste Service, Inc., Manumit of Florida, Inc., Republic
Services Aviation, Inc. and Schofield Corporation of Orlando are incorporated under the laws of
Florida.
Section 607.0850 of the Florida Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers, directors, employees or other
agents of the corporation under certain circumstances and subject to certain limitations.
Section 607.0831 of the Florida Business Corporation Act provides that a director shall not be
personally liable for monetary damages to the corporation or any other person for any statement,
vote, decision or failure to act regarding corporate management or policy by such director, subject
to certain limitations.
The articles of incorporation of each of Delta Dade Recycling Corp., Envirocycle, Inc. and
Gulfcoast Waste Service, Inc. provide that the corporation shall indemnify any officer or director,
or any former officer or director, to the fullest extent permitted by law.
The bylaws of each of Delta Dade Recycling Corp., Delta Resources Corp., Delta Site
Development Corp., Delta Waste Corp., Envirocycle, Inc., Gulfcoast Waste Service, Inc., Manumit of
Florida, Inc., Republic Services Aviation, Inc. and Schofield Corporation of Orlando provide that
the corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding (other than an action by
or in the right of the corporation) by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Delta Dade Recycling Corp., Delta Resources Corp., Delta Site
Development Corp., Delta Waste Corp., Envirocycle, Inc., Gulfcoast Waste Service, Inc., Manumit of
Florida, Inc., Republic Services Aviation, Inc. and Schofield Corporation of Orlando also provide
that any indemnification (unless ordered by a
II-19
court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
(b) Allied Waste Transfer Services of Florida, LLC is organized as a limited liability company
under the laws of Florida.
Section 608.4229 of the Florida Limited Liability Act permits a limited liability company to
indemnify a member, manager or other person under certain circumstances and subject to certain
limitations.
Section 608.4225 of the Florida Limited Liability Act provides that a manager or managing
member shall not be liable for any action taken as a manager or managing member or any failure to
take any action if the manager or managing member performed his or her duties in compliance with
the duty of loyalty and duty of care to the company and all of the members of the company.
The operating agreement of Allied Waste Transfer Services of Florida, LLC provides that the
company shall defend, indemnify and save harmless the sole member, its officers and directors, and
the officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Georgia Registrants:
(a) Allied Waste Hauling of Georgia, Inc., Allied Waste Industries of Georgia, Inc., Golden Waste
Disposal, Inc., Price & Sons Recycling Company and S & S Recycling, Inc. are incorporated under the
laws of Georgia.
Sections 14-2-850 et seq. of the Georgia Business Corporation Code authorize a court to award,
or a corporations board of directors to grant, indemnity to an officer, director, employee or
agent of the corporation under certain circumstances and subject to certain limitations.
Section 14-2-202(b)(4) of the Georgia Business Corporation Code permits a corporation to
provide in its articles of incorporation that a director of the corporation shall not be personally
liable to the corporation or its shareholders for monetary damages for any action taken or any
failure to take any action as a director, subject to certain limitations. Section 14-2-842 of the
Georgia Business Corporation Code provides that an officer shall not be liable to the corporation
or to its shareholders for any action taken as an officer or any failure to take any action if such
officer performed the duties of the office (i) in a manner he or she believes in good faith to be
in the best
II-20
interests of the corporation and (ii) with the care an ordinarily prudent person in a like position
would exercise under similar circumstances.
The articles of incorporation of Price & Sons Recycling Company provide that no director of
the corporation shall have personal liability to the corporation or its shareholders for monetary
damages for breach of such directors duty of care or other duty as a director, except as required
by the Georgia Business Corporation Code.
The bylaws of each of Price & Sons Recycling Company and S & S Recycling, Inc. provide that
the corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding (other than an action by
or in the right of the corporation) by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Price & Sons Recycling Company and S & S Recycling, Inc. also provide
that any indemnification (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or proceeding, (ii) if
such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the stockholders. Expenses
incurred by a director or officer in defending or investigating a threatened or pending action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she is not entitled to
be indemnified by the corporation according to the bylaws of the corporation. The corporation may
purchase and maintain insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power or the obligation to indemnify him or her
against such liability under the bylaws of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of each of Allied Waste Hauling of Georgia, Inc., Allied Waste Industries of Georgia, Inc.
or Golden Waste Disposal, Inc.
(b) Central Virginia Properties, LLC, Gateway Landfill, LLC and Wayne Developers, LLC are organized
as limited liability companies under the laws of Georgia.
II-21
Section 14-11-306 of the Georgia Limited Liability Company Act permits a limited liability
company to indemnify a member, manager or other person under certain circumstances and subject to
certain limitations.
The operating agreement of Gateway Landfill, LLC provides that the company shall defend,
indemnify and save harmless the sole member, its officers and directors, and the officers of the
company from and against all losses, claims, costs, liabilities and damages incurred by such person
by reason of any act performed or omitted to be performed by such person in connection with the
business of the company, including attorneys fees incurred by such person in connection with the
defense of any action based on any such act or omission; provided, however, no such person shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
There is no provision for indemnification or insurance in the certificate of formation or the
operating agreement of Central Virginia Properties, LLC or Wayne Developers, LLC.
Idaho Registrants: Ada County Development Company, Inc., Allied Waste Services of Page, Inc., and
American Sanitation, Inc. are incorporated under the laws of Idaho.
Sections 30-1-850 et seq. of the Idaho Business Corporation Act authorize a court to award, or
a corporations board of directors to grant, indemnity to officers and directors of the corporation
under certain circumstances and subject to certain limitations.
Section 30-1-202(2)(d) of the Idaho Business Corporation Act permits a corporation to provide
in its articles of incorporation that a director of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for any action taken or any failure to
take any action as a director, subject to certain limitations. Section 30-1-842 of the Idaho
Business Corporation Act provides that an officer shall not be liable to the corporation or to its
shareholders for any decision to take or not to take action or any failure to take action as an
officer if the duties of the office are performed (i) in good faith, (ii) with the care that a
person in a like position would reasonably exercise under similar circumstances and (iii) in a
manner the officer reasonably believes to be in the best interests of the corporation.
The articles of incorporation of American Sanitation, Inc. provide that no director of the
corporation shall be personally liable to the corporation or its stockholders for monetary damages
resulting from a breach of fiduciary duty as a director of the corporation, provided that such
provision shall not eliminate or limit the liability of a director for (i) any breach of the
directors duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or knowing violation of the law, (iii) any of
those liabilities provided under 30-1-48 of the Idaho Business Corporation Act relating to unlawful
dividends, repurchases or distributions of assets or (iv) any transaction from which the director
derived an improper personal benefit.
The bylaws of each of Ada County Development Company, Inc. and American Sanitation, Inc.
provide that the corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another entity or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director,
II-22
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of each of Ada County Development Company, Inc. and American Sanitation, Inc. also
provide that any indemnification (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of the director or
officer is proper in the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or proceeding, (ii) if
such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the stockholders. Expenses
incurred by a director or officer in defending or investigating a threatened or pending action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she is not entitled to
be indemnified by the corporation according to the bylaws of the corporation. The corporation may
purchase and maintain insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power or the obligation to indemnify him or her
against such liability under the bylaws of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Waste Services of Page, Inc.
Illinois Registrants:
(a) ADS of Illinois, Inc., Allied Waste Industries of Illinois, Inc., Arc Disposal Company, Inc.,
Area Disposal, Inc., Borrow Pit Corp., Brickyard Disposal & Recycling, Inc., CWI of Illinois, Inc.,
Environmental Reclamation Company, Fred Barbara Trucking Co., Inc., Illinois Landfill, Inc.,
Illinois Recycling Services, Inc., Illinois Valley Recycling, Inc., Ingrum Waste Disposal, Inc.,
Kankakee Quarry, Inc., LandComp Corporation, Lee County Landfill, Inc., Loop Recycling, Inc., Loop
Transfer, Incorporated, Northlake Transfer, Inc., RCS, Inc., Roxana Landfill, Inc., Saline County
Landfill, Inc., Shred All Recycling Systems Inc., Southern Illinois Regional Landfill, Inc.,
Streator Area Landfill, Inc., Suburban Transfer, Inc., Suburban Warehouse, Inc., Tri-State
Recycling Services, Inc. and Upper Rock Island County Landfill, Inc. are incorporated under the
laws of Illinois.
Section 8.75 of the Illinois Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to directors, officers, employees and agents
of the corporation under certain circumstances and subject to certain limitations.
Section 5/2.10(b)(3) of the Illinois Business Corporation Act permits a corporation to provide
in its articles of incorporation that a director of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for any action taken or any failure to
take any action as a director, subject to certain limitations.
II-23
The articles of incorporation of ADS of Illinois, Inc. provide that, to the fullest extent
permitted by the Illinois Business Corporation Act, a director of the corporation shall not be
liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as
a director.
The articles of incorporation of Borrow Pit Corp. provide that a director of the corporation
shall not be personally liable to the corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach of the directors
duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section
8.65 of the Illinois Business Corporation Act relating to unlawful distributions or (iv) any
transaction from which the director derived an improper personal benefit.
The bylaws of each of ADS of Illinois, Inc., Arc Disposal Company, Inc., Area Disposal, Inc.,
Borrow Pit Corp., Brickyard Disposal & Recycling, Inc., CWI of Illinois, Inc., Environmental
Reclamation Company, Fred Barbara Trucking Co., Inc., Illinois Recycling Services, Inc., Illinois
Valley Recycling, Inc., Ingrum Waste Disposal, Inc., Kankakee Quarry, Inc., LandComp Corporation,
Loop Recycling, Inc., Loop Transfer, Incorporated, Northlake Transfer, Inc., Roxana Landfill, Inc.,
Saline County Landfill, Inc., Shred All Recycling Systems Inc., Southern Illinois Regional
Landfill, Inc., Suburban Transfer, Inc., Suburban Warehouse, Inc., Tri-State Recycling Services,
Inc. and Upper Rock Island County Landfill, Inc. provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of each of the Illinois corporation registrants listed in the preceding paragraph
also provide that any indemnification (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances because such person has met the applicable standard of
conduct. Such determination shall be made (i) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such action, suit or proceeding, (ii) if
such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion or (iii) by the stockholders. Expenses
incurred by a director or officer in defending or investigating a threatened or pending action,
suit or proceeding shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation according to the bylaws of the corporation. The corporation
may purchase and
II-24
maintain insurance on behalf of any person who is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of
another entity or other enterprise against any liability asserted against or incurred by such
person in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power or the obligation to indemnify him or her against such liability
under the bylaws of the corporation.
The bylaws of Illinois Landfill, Inc. provide that, to the extent not inconsistent with
applicable law, every person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee, agent or fiduciary of another entity, shall be indemnified by the corporation against all
liability and reasonable expenses that may be incurred by him or her in connection with or
resulting from any Claim: (i) if such person is successful with respect to the claim, (ii) if not
successful, then if such person is determined to have: (1) conducted himself or herself in good
faith; and (2) reasonably believed: (A) in the case of conduct in his official capacity with the
corporation, that his conduct was in its best interest; and (B) in all other cases, that his
conduct was at least not opposed to the best interest of the corporation; and (3) in the case of
any criminal proceeding, either: (A) had reasonable cause to believe his conduct was lawful; or (B)
had no reasonable cause to believe his conduct was unlawful. The determination whether such person
has met the required standards of conduct shall be made (i) by the board of directors by majority
vote of a quorum consisting of directors not at the time parties to the claim, and if such a quorum
cannot be obtained, then (ii) by majority vote of a committee duly designated by the board of
directors consisting solely of two or more directors not at the time parties to the claim, and if
such a committee cannot be constituted, then (iii) by the shareholders (but shares owned by or
voted under the control of a director who is at the time a party to the claim may not be voted),
and if there are no shareholders who are entitled to vote pursuant to the requirements of (iii)
above, then (iv) by special legal counsel selected by a majority vote of the full board of
directors. Expenses incurred by such person with respect to any claim shall be advanced by the
corporation (by action of the board of directors, whether or not a disinterested quorum exists)
prior to the final disposition thereof if: (i) such person furnishes the corporation a written
affirmation of his good faith belief that such person has met the standards of conduct specified in
the bylaws of the corporation; and (ii) such person furnishes the corporation a written undertaking
to repay the advance if it is ultimately determined that such person did not meet the specified
standards of conduct; and (iii) the board of directors makes a determination that the facts then
known would not preclude indemnification of such person.
The bylaws of each of RCS, Inc. and Streator Area Landfill, Inc. provide that the corporation
shall have the power to indemnify any person who was or is a party or is threatened to be made
party to any threatened, pending or completed action, suit or proceeding (other than an action by
or in the right of the corporation) by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action, suit or proceeding
if such person acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful. The corporation
shall have the power to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best interests of the
corporation, provided that no indemnification shall be made in respect of any claim, issue or
matter as to which such persons shall have been adjudged to be liable for negligence or misconduct
in the performance of his or her duty to the corporation, unless, and only to the extent that, the
court in which such action or suit was brought shall determine upon application that,
II-25
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
Any determination to indemnify such person shall be made: (i) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by
the shareholders. Expenses incurred in defending a civil or criminal action, suit or proceeding may
be paid by the corporation in advance of the final disposition of such action, suit or proceeding,
as authorized by the board of directors in the specific case, upon receipt of an undertaking by or
on behalf of the director, officer, employee or agent to repay such amount, unless it shall
ultimately be determined that he or she is entitled to be indemnified by the corporation. The
corporation shall have the power to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation, as a director, officer, employee or agent of another entity or other
enterprise, against any liability asserted against such person and incurred by such person in any
such capacity, or arising out of his status as such, whether or not the corporation would have the
power to indemnify him or her against such liability under the provisions of this Article.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Waste Industries of Illinois, Inc. or Lee County Landfill, Inc.
(b) Liberty Waste Service of Illinois, L.L.C. is organized as a limited liability company under the
laws of Illinois.
Section 15-7(a) of the Illinois Limited Liability Company Act authorizes a limited liability
company to indemnify a member or manager under certain circumstances and subject to certain
limitations.
The operating agreement of Liberty Waste Service of Illinois, L.L.C. provides that the company
shall defend, indemnify and save harmless the sole member, its officers and directors and the
officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Indiana Registrants:
(a) Allied Waste Industries of Northwest Indiana, Inc., DTC Management, Inc. and Wastehaul, Inc.
are incorporated under the laws of Indiana.
Section 23-1-37 of the Indiana Business Corporation Law authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers, directors, agents and employees
of the corporation under certain circumstances and subject to certain limitations.
Section 23-1-35-1(e) of the Indiana Business Corporation Law provides that a director shall
not be liable for any action taken as a director or any failure to take any action, regardless of
the nature of the alleged breach of duty unless (i) the director has breached or failed to perform
the duties of the directors office (1) in good faith, (2) with the care an ordinarily prudent
person in a like position would exercise under similar circumstances and (3) in a manner the
director reasonably believes to be in the best interests of the corporation and (ii) the breach or
failure to perform constitutes willful misconduct or recklessness.
The articles of incorporation of DTC Management, Inc. provide for indemnification to the
fullest extent permissible by law.
II-26
The bylaws of Allied Waste Industries of Northwest Indiana, Inc. provide for indemnification
for any person who is or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee, agent or fiduciary of
another foreign or domestic entity that may be incurred by him or her in connection with or
resulting from any claim as long as such person acted in good faith and reasonably believed that
his or her conduct was in the best interest of (in the case of conduct in his or her official
capacity with the corporation) or not opposed to (in all other cases) the best interest of the
corporation. In the case of any criminal proceeding, such person must have had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful. The determination whether such person has met the required standards of conduct shall be
made (i) by the board of directors by majority vote of a quorum consisting of directors not at the
time parties to the claim, and if such a quorum cannot be obtained; then (ii) by majority vote of a
committee duly designated by the board of directors consisting solely of two or more directors not
at the time parties to the claim; and if such a committee cannot be constituted; then (iii) by the
shareholders, and if there are no shareholders who are not also directors who are a party to the
claim; then (iv) by special legal counsel selected by a majority vote of the full board of
directors (in which selection, a director who is a party to the claim may participate). Expenses
incurred by such person may be advanced by the corporation prior to the final disposition of the
claim under certain circumstances.
The bylaws of DTC Management, Inc. and Wastehaul, Inc. provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of DTC Management, Inc. and Wastehaul, Inc. also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any
II-27
person who is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another entity or other enterprise
against any liability asserted against him or her and incurred by him or her in any such capacity,
or arising out of his or her status as such, whether or not the corporation would have the power or
the obligation to indemnify him or her against such liability under the bylaws of the corporation.
(b) Agricultural Acquisitions, LLC is organized as a limited liability company under the laws
of Indiana.
Section 23-18-2-2(14) of the Indiana Business Flexibility Act permits a limited liability
company to indemnify a member, manager, agent or employee of the corporation under certain
circumstances and subject to certain limitations.
Section 23-18-4-2(a) of the Indiana Business Flexibility Act provides that, unless otherwise
provided in a written operating agreement, a member or manager shall not be liable for damages to
the limited liability company or to the members of the limited liability company for any action
taken or failure to act on behalf of the limited liability company, unless the act or omission
constitutes willful misconduct or recklessness.
The operating agreement of Agricultural Acquisitions, LLC provides that the company shall
indemnify any member or manager and may indemnify any employee or other agent of the company who
was or is a party or is threatened to be made a party to a threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or
informal (other than an action by or in the right of the company) by reason of the fact that such
member, manager, employee or other agent of the company operates in that capacity, against all
expenses, including attorney fees, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with the action, suit or proceeding.
Such indemnification will only be provided if such person acted in good faith, with the care an
ordinarily prudent person in a like position would exercise under similar circumstances and in a
manner that such person reasonably believed to be in the best interest of the company and, with
respect to a criminal action or proceeding, if such person had no reasonable cause to believe that
the persons conduct was unlawful.
(c) Benton County Development Company, Clinton County Landfill Partnership, County Line Landfill
Partnership, Illiana Disposal Partnership, Jasper County Development Company Partnership, Key Waste
Indiana Partnership, Lake County C & D Development Partnership, Newton County Landfill Partnership,
Springfield Environmental General Partnership, Tippecanoe County Waste Services Partnership and
Warrick County Development Company are organized as general partnerships under the laws of Indiana.
Section 23-4-1-18(b) of the Indiana Uniform Partnership Act authorizes a general partnership
to indemnify partners under certain circumstances and subject to certain limitations.
There is no provision for indemnification or insurance in the partnership agreements of any of
the Indiana general partnership registrants.
Iowa Registrants:
(a) Jetter Disposal, Inc. is incorporated under the laws of Iowa.
Division VIII, Part E of the Iowa Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers and directors of the corporation
under certain circumstances and subject to certain limitations.
Section 490.831(1) provides that a director shall not be liable to the corporation or its
shareholders for any decision as a director to take or not to take action or any failure to take
any action unless the challenged conduct was
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the result of (i) action not in good faith, (ii) a decision that the director did not reasonably
believe to be in the best interests of the corporation or (iii) a decision as to which the director
was not informed to an extent the director reasonably believed appropriate in the circumstances.
Section 490.842(3) provides that an officer shall not be liable to the corporation or its
shareholders for any decision to take or not to take action or any failure to take any action if
the duties of the officer are performed (i) in good faith, (ii) with the care that a person in a
like position would reasonably exercise under similar circumstances and (iii) in a manner he or she
reasonably believes to be in the best interests of the corporation.
The bylaws of Jetter Disposal, Inc. provide that the corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of Jetter Disposal, Inc. also provide that any indemnification (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
(b) Allied Waste Transfer Services of Iowa, LLC is organized as a limited liability company under
the laws of Iowa.
Section 490A.202(17) of the Iowa Limited Liability Company Act permits a limited liability
company to indemnify a member, manager or other person, as provided in an operating agreement.
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Section 490A.706(4) of the Iowa Limited Liability Company Act provides that a manager shall
not be liable for any action taken as a manager or any failure to take any action if the manager
performed the duties of the managers office in good faith, with the care an ordinary prudent
person in a like position would exercise under similar circumstances, and in a manner the manager
believes to be in the best interests of the limited liability company.
The operating agreement of Allied Waste Transfer Services of Iowa, LLC provides that the
company shall defend, indemnify and save harmless the sole member, its officers and directors, and
the officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Kansas Registrants: American Disposal Services of Kansas, Inc., Resource Recovery, Inc. and Sunset
Disposal, Inc. are incorporated under the laws of Kansas.
Section 17-6305 of the General Corporation Code of Kansas authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
The bylaws of each of the Kansas corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Kansas corporation registrants also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
II-30
such amount if it shall ultimately be determined that he or she is not entitled to be indemnified
by the corporation according to the bylaws of the corporation. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director or officer of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of
another entity or other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power or the obligation to indemnify him or her against such liability
under the bylaws of the corporation.
Kentucky Registrants:
(a) Republic Services of Kentucky, LLC is organized as a limited liability company under the laws
of Kentucky.
Section 275.180 of the Kentucky Limited Liability Company Act permits a limited liability
company to indemnify a member or manager of the company under certain circumstances and subject to
certain limitations.
Section 274.170(1) of the Kentucky Limited Liability Company Act provides that, unless
otherwise provided in a written operating agreement, a member or manager shall not be liable,
responsible or accountable in damages or otherwise to a limited liability company for any action
taken or failure to act on behalf of the limited liability company unless the act or omission
constitutes wanton or reckless misconduct.
There is no provision for indemnification or insurance in the certificate of formation or
operating agreement of Republic Services of Kentucky, LLC.
(b) Benson Valley Landfill General Partnership, Blue Ridge Landfill General Partnership, Green
Valley Landfill General Partnership and Morehead Landfill General Partnership are organized as
general partnerships under the laws of Kentucky.
Section 362.235 of the Kentucky Uniform Partnership Act authorizes a general partnership to
indemnify partners under certain circumstances and subject to certain limitations.
There is no provision for indemnification or insurance in the partnership agreement of any of
the Kentucky general partnership registrants.
Louisiana Registrants: Crescent Acres Landfill, LLC, Frontier Waste Services of Louisiana L.L.C.,
Jefferson Parish Development Company, LLC and St. Bernard Parish Development Company, LLC are
organized as limited liability companies under the laws of Louisiana.
Section 12:1315(2) of the Louisiana Limited Liability Company Act permits a limited liability
company to indemnify a member or manager of the company under certain circumstances and subject to
certain limitations.
Section 12:1314 of the Louisiana Limited Liability Company Act provides that a manager or
managing member shall not be liable for any action taken on behalf of the limited liability company
or any failure to take any action if he or she performed the duties of his or her office in good
faith, with the diligence, care, judgment, and skill which an ordinary prudent person in a like
position would exercise under similar circumstances.
The operating agreement of Frontier Waste Services of Louisiana L.L.C. provides that the
company shall defend, indemnify and save harmless the sole member, its officers, and any officers
of the company from and against all losses, claims, costs, liabilities and damages incurred by such
person by reason of any act performed or omitted to be performed by such person in connection with
the business of the company, including attorneys fees incurred by such person in connection with
the defense of any action based on any such act or omission; provided,
II-31
however, no such person shall be indemnified from any liability for fraud, bad faith, willful
misconduct or gross negligence.
The operating agreement of each of Crescent Acres Landfill, LLC, Jefferson Parish Development
Company, LLC and St. Bernard Parish Development, LLC provides for identical indemnification as
described in the preceding paragraph, except that such indemnification is also provided to the
directors of the sole member of the company.
Maryland Registrants:
(a) Browning-Ferris, Inc., Calvert Trash Systems, Incorporated and Honeygo Run Reclamation Center,
Inc. are incorporated under the laws of Maryland.
Section 2-418 of the Maryland General Corporation Law authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
Section 2-405.1 of the Maryland General Corporation Law and Section 5-417 of the Maryland
Courts and Judicial Proceedings Article provide that a director shall have no liability by reason
of being or having been a director of a corporation if such director performs his or her duties (i)
in good faith, (ii) in a manner he or she reasonably believes to be in the best interests of the
corporation and (iii) with the care that an ordinarily prudent person in a like position would use
under similar circumstances.
The bylaws of each of the Maryland corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Maryland corporation registrants also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a
II-32
threatened or pending action, suit or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the corporation according to the bylaws of the
corporation. The corporation may purchase and maintain insurance on behalf of any person who is or
was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
any liability asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would have the power or
the obligation to indemnify him or her against such liability under the bylaws of the corporation.
(b) Prince Georges County Landfill, LLC is organized as a limited liability company under the laws
of Maryland.
Section 4A-203 of the Maryland Limited Liability Company Act permits a limited liability
company to indemnify a member, agent or employee of the company under certain circumstances and
subject to certain limitations.
The operating agreement of Prince Georges County Landfill, LLC provides that the company
shall defend, indemnify and save harmless the sole member, its officers and directors, and any
officers of the company, from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Massachusetts Registrants:
(a) Allied Acquisition Two, Inc., Atlantic Waste Holding Company, Inc., Browning-Ferris Industries,
Inc., F. P. McNamara Rubbish Removal, Inc. and Vining Disposal Service, Inc. are incorporated under
the laws of Massachusetts.
Sections 8.50 et seq. of the Massachusetts Business Corporation Act authorize a court to
award, or a corporations board of directors to grant, indemnity to officers and directors of the
corporation under certain circumstances and subject to certain limitations.
Section 8.30 of the Massachusetts Business Corporation Act provides that a director shall not
be liable for any action taken as a director, or any failure to take any action, if such director
performed the duties of the office (i) in good faith, (ii) with the care that a person in a like
position would reasonably believe appropriate under similar circumstances and (iii) in a manner
such director reasonably believes to be in the best interests of the corporation. Section 8.42 of
the Massachusetts Business Corporation Act provides that an officer shall not be liable to the
corporation or its shareholders for any decision to take or not to take any action taken, or any
failure to take any action as an officer if the duties of the officer are performed (i) in good
faith, (ii) with the care that a person in a like position would reasonable exercise under similar
circumstances and (iii) in a manner the officer reasonably believes to be in the best interests of
the corporation.
The bylaws of each of Allied Acquisition Two, Inc., Atlantic Waste Holding Company, Inc.,
Browning-Ferris Industries, Inc. and F. P. McNamara Rubbish Removal, Inc. provide that the
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments,
II-33
fines and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that such person
is or was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Allied Acquisition Two, Inc., Atlantic Waste Holding Company, Inc.,
Browning-Ferris Industries, Inc. and F. P. McNamara Rubbish Removal, Inc. also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
The bylaws of Vining Disposal Service, Inc. provide that the corporation shall indemnify and
hold harmless each person, now or hereafter an officer or director of the corporation, from and
against any and all claims and liabilities to which such person may be or become subject by reason
of such person being or having been an officer or a director of the corporation or by reason of
such persons alleged acts or omissions as an officer or director of the corporation. The
corporation shall indemnify and reimburse each such officer and director against and for any and
all legal and other expenses reasonably incurred by such person in connection with any such claims
and liabilities, except with respect to any matters to which such officer or director shall have
been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that
his action was in the best interest of the corporation. The corporation shall similarly indemnify
and hold harmless persons who serve at the corporations request as directors or officers of
another organization in which the corporation owns shares or of which it is a creditor.
(b) Allied Waste Services of Massachusetts, LLC, BFI Transfer Systems of Massachusetts, LLC and BFI
Waste Systems of Massachusetts, LLC are organized as limited liability companies under the laws of
Massachusetts.
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Section 8 of the Massachusetts Limited Liability Company Act permits a limited liability
company to indemnify a member, manager or any other person under certain circumstances and subject
to certain limitations.
The operating agreement of each of the Massachusetts limited liability company registrants
provides that the company shall defend, indemnify and save harmless the sole member, its officers,
and any officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Michigan Registrants:
(a) Adrian Landfill, Inc., Central Sanitary Landfill, Inc., Citizens Disposal, Inc., City-Star
Services, Inc., Clarkston Disposal, Inc., Dinverno, Inc., Eagle Industries Leasing, Inc., FLL,
Inc., G. Van Dyken Disposal Inc., Harlands Sanitary Landfill, Inc., Oakland Heights Development,
Inc., Reliable Disposal, Inc., Royal Holdings, Inc., Sanitary Disposal Service, Inc., Sauk Trail
Development, Inc., Standard Disposal Services, Inc., Standard Environmental Services, Inc., Tay-Ban
Corporation and Tri-County Refuse Service, Inc. are incorporated under the laws of Michigan.
Sections 450.1651 et seq. of the Michigan Business Corporation Act authorizes a court to
award, or a corporations board of directors to grant, indemnity to an officer, director, employee
or agent of the corporation under certain circumstances and subject to certain limitations.
Section 450.1209 of the Michigan Business Corporation Act permits a corporation to provide in
its articles of incorporation that a director of the corporation shall not be personally liable to
the corporation or its shareholders for monetary damages for any action taken or any failure to
take any action as a director under certain circumstances and subject to certain limitations.
The articles of incorporation of Central Sanitary Landfill, Inc. provide that the corporation
shall indemnify any director of the corporation who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding by reason of the fact that
he or she is or was a director, or is or was serving at the request of the corporation in another
capacity, to the fullest extent permitted (in the absence of rights granted under the articles of
incorporation, bylaws or contractual rights) by the Michigan Business Corporation Act.
The articles of incorporation of Central Sanitary Landfill, Inc. also provide that a director
of the corporation shall not be personally liable to the corporation or its shareholders for
monetary damages for a breach of fiduciary duty as a director, except for liability arising from
(i) a breach of the directors duty of loyalty to the corporation or its shareholders, (ii) an act
or omission not in good faith or that involves intentional misconduct or knowing violation of law,
(iii) a violation of Section 551(1) of the Michigan Business Corporation Act relating to unlawful
dividends, distributions or loans or (iv) a transaction from which such director derived an
improper personal benefit.
The articles of incorporation of each of Citizens Disposal, Inc. and Clarkston Disposal, Inc.
provide that no director of the corporation shall be personally liable to the corporation or its
shareholders for monetary damages for a breach of the directors fiduciary duty.
The articles of incorporation of Oakland Heights Development, Inc. provide that a director of
the corporation shall not be personally liable to the corporation or its shareholders for monetary
damages for a breach of fiduciary duty as a director, except for liability arising from (i) a
breach of the directors duty of loyalty to the corporation or its shareholders, (ii) an act or
omission not in good faith or that involves intentional misconduct or knowing violation of law,
(iii) a violation of Section 551(1) of the Michigan Business Corporation Act relating to unlawful
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dividends, distributions or loans, (iv) a transaction from which such director derived an improper
personal benefit or (v) an act or omission occurring prior to the date that the articles of
incorporation of the company became effective.
The bylaws of each of Adrian Landfill, Inc., Central Sanitary Landfill, Inc., Citizens
Disposal, Inc., City-Star Services, Inc., Clarkston Disposal, Inc., Dinverno, Inc., Eagle
Industries Leasing, Inc., FLL, Inc., Harlands Sanitary Landfill, Inc., Reliable Disposal, Inc.,
Sauk Trail Development, Inc., Standard Disposal Services, Inc., Standard Environmental Services,
Inc., Tay-Ban Corporation and Tri-County Refuse Service, Inc. provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Adrian Landfill, Inc., Central Sanitary Landfill, Inc., Citizens
Disposal, Inc., City-Star Services, Inc., Clarkston Disposal, Inc., Dinverno, Inc., Eagle
Industries Leasing, Inc., FLL, Inc., Harlands Sanitary Landfill, Inc., Reliable Disposal, Inc.,
Sauk Trail Development, Inc., Standard Disposal Services, Inc., Standard Environmental Services,
Inc., Tay-Ban Corporation and Tri-County Refuse Service, Inc. also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
The bylaws of each of G. Van Dyken Disposal Inc. and Oakland Heights Development, Inc. provide
that the corporation may indemnify any person who was or is a party or is threatened to be made a
party to any threatened,
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pending, or completed action, suit, or proceeding (other than an action by or in the right of the
corporation), by reason of the fact that the person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another entity or other enterprise against expenses
(including attorney fees), judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation or its shareholders and, with respect to a criminal action or
proceeding, the person had no reasonable cause to believe his or her conduct was unlawful. The
corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of another entity or other
enterprise, whether for profit or not for profit, against expenses, including attorney fees and
amounts paid in settlement actually and reasonably incurred by the person in connection with the
action or suit, if the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation or its shareholders. Indemnification
shall not be made for a claim, issue or matter in which the person shall have been found liable to
the corporation except to the extent authorized by statute.
The bylaws of each of G. Van Dyken Disposal Inc. and Oakland Heights Development, Inc. also
provide that (unless compelled by a court) indemnification may be made by the corporation only as
authorized in the specified case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth above. This determination shall be made by (i) a majority vote of a
quorum of the board of directors consisting of the directors who are not parties or threatened to
be made parties to the claim, (ii) if a quorum cannot be obtained, by majority vote of a committee
duly designated by the board or (iii) by independent legal counsel in a written opinion, or (iv) by
all independent directors who are not parties or threatened to be made parties to the claim or (v)
by the shareholders, but shares held by directors, officers, employees or agents who are parties or
threatened to be made parties to the claim may not be voted. The corporation may advance expenses
incurred by a director, officer, employee or agent before final disposition of a proceeding in
certain circumstances. The corporation may purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
any liability asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would have the power or
the obligation to indemnify him or her against such liability under the bylaws of the corporation.
The bylaws of Royal Holdings, Inc. provide that any person made a party to any action, suit or
proceeding by reason of the fact that such person is or was a director, officer or employee of the
corporation, or of any corporation in which such person served as such at the request of the
corporation, shall be indemnified by the corporation against the reasonable expenses (including
attorneys fees) actually and necessarily incurred by such person in connection with the defense of
such action, suit or proceedings or in connection with any appeal therein; provided that such
indemnification shall not be available in relation to matters as to which it was adjudged in such
action, suit or proceeding or in connection with any appeal therein, that such person is liable for
negligence or misconduct in the performance of such persons duties.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Sanitary Disposal Service, Inc.
(b) Allied Waste Systems of Michigan, LLC, C & C Expanded Sanitary Landfill, LLC, Republic Services
of Michigan Hauling, LLC, Republic Services of Michigan I, LLC, Republic Services of Michigan II,
LLC,
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Republic Services of Michigan III, LLC, Republic Services of Michigan IV, LLC and Republic Services
of Michigan V, LLC are organized as limited liability companies under the laws of Michigan.
Section 450.4408 of the Michigan Limited Liability Company Act permits a limited liability
company to indemnify managers of the company under certain circumstances and subject to certain
limitations.
Section 450.4404 of the Michigan Limited Liability Company Act provides that a manager shall
not be liable for an action taken as a manager or the failure to take an action if such manager
performs the duties of his or her office in good faith, with the care an ordinarily prudent person
in a like position would exercise under similar circumstances and in a manner he or she reasonably
believes to be in the best interests of the limited liability company.
The operating agreement of each of Allied Waste Systems of Michigan, LLC and C & C Expanded
Sanitary Landfill, LLC provides that the company shall defend, indemnify and save harmless the sole
member, its officers and directors, and any officers of the company, from and against all losses,
claims, costs, liabilities and damages incurred by such person by reason of any act performed or
omitted to be performed by such person in connection with the business of the company, including
attorneys fees incurred by such person in connection with the defense of any action based on any
such act or omission; provided, however, no such person shall be indemnified from any liability for
fraud, bad faith, willful misconduct or gross negligence.
There is no provision for indemnification or insurance in the certificate of formation or the
operating agreement of Republic Services of Michigan Hauling, LLC, Republic Services of Michigan I,
LLC, Republic Services of Michigan II, LLC, Republic Services of Michigan III, LLC, Republic
Services of Michigan IV, LLC or Republic Services of Michigan V, LLC.
Minnesota Registrant: Woodlake Sanitary Service, Inc. is incorporated under the laws of Minnesota.
Section 302A.521 of the Minnesota Business Corporation Act authorizes indemnification of
officers, directors, members of committees of the board of directors and employees of the
corporation under certain circumstances and subject to certain limitations.
Section 302A.251(1) of the Minnesota Business Corporation Act provides that a director shall
not be liable by reason of being or having been a director of the corporation if the director
performs his or her duties (i) in good faith, (ii) in a manner the director reasonably believes to
be in the best interests of the corporation and (iii) with the care an ordinarily prudent person in
a like position would exercise under similar circumstances.
The bylaws of Woodlake Sanitary Service, Inc. provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
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no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of Woodlake Sanitary Service, Inc. also provide that any indemnification (unless
ordered by a court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
Mississippi Registrants:
(a) Mississippi Waste Paper Company is incorporated under the laws of Mississippi.
Subarticle E of Article 8 of the Mississippi Business Corporation Act authorizes a court to
award, or a corporations board of directors to grant, indemnity to officers and directors of the
corporation under certain circumstances and subject to certain limitations.
Section 79-4-8.31 of the Mississippi Business Corporation Act provides that a director shall
not be liable to the corporation or its shareholders for any decision to take or not to take action
or any failure to take any action as a director unless the challenged conduct consisted or was the
result of (i) action not in good faith, (ii) a decision (1) which the director did not reasonably
believe to be in the best interests of the corporation or (2) as to which the director was not
informed to an extent the director reasonably believed appropriate in the circumstances, (iii) a
lack of objectivity or independence, (iv) a sustained failure of the director to be informed about
the business and affairs of the corporation or (v) receipt of a financial benefit to which the
director was not entitled. Section 79-4-8.42 of the Mississippi Business Corporation Act provides
that an officer shall not be liable to the corporation or its shareholder for any decision to take
or not to take action, or any failure to take any action as an officer so long as the duties of the
office are performed (i) in good faith, (ii) with the care that a person in a like position would
reasonably exercise under similar circumstances and (iii) in a manner the officer reasonably
believes to be in the best interests of the corporation.
The bylaws of Mississippi Waste Paper Company provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action,
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suit or proceeding if such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful. The corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against expenses (including attorneys
fees) actually and reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of Mississippi Waste Paper Company also provide that any indemnification (unless
ordered by a court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
(b) Hancock County Development Company, LLC, Harrison County Landfill, LLC and Jackson County
Landfill, LLC are organized as limited liability companies under the laws of Mississippi.
Section 79-29-110 of the Mississippi Limited Liability Company Act authorizes a court to
award, or a limited liability company to grant, indemnity to a member, manager or agent of the
company under certain circumstances and subject to certain limitations.
Section 79-29-402 of the Mississippi Limited Liability Company Act provides that a manager of
a limited liability company shall not be liable for any action taken as a manger or any failure to
take any action if the manager performed the duties of the office (i) in good faith, (ii) with the
care an ordinarily prudent person in a like position would exercise under similar circumstances and
(iii) in a manner he or she reasonably believes to be in the best interest of the limited liability
company.
The operating agreement of each of the Mississippi limited liability company registrants
provides that the company shall defend, indemnify and save harmless the sole member, its officers
and directors, and any officers of the company, from and against all losses, claims, costs,
liabilities and damages incurred by such person by reason of any act performed or omitted to be
performed by such person in connection with the business of the company, including attorneys fees
incurred by such person in connection with the defense of any action based on any such act
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or omission; provided, however, no such person shall be indemnified from any liability for fraud,
bad faith, willful misconduct or gross negligence.
Missouri Registrants:
(a) Autoshred, Inc., Belleville Landfill, Inc., CWI of Missouri, Inc., Rock Road Industries, Inc.,
Tates Transfer Systems, Inc. and Thomas Disposal Service, Inc. are incorporated under the laws of
Missouri.
Section 351.355 of the General and Business Corporation Law of Missouri authorizes a court to
award, or a corporations board of directors to grant, indemnity to an officer, director, employee
or agent of the corporation under certain circumstances and subject to certain limitations.
The bylaws of each of Autoshred, Inc., CWI of Missouri, Inc., Rock Road Industries, Inc. and
Tates Transfer Systems, Inc. provide that the corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the corporation) by reason of the fact that
such person is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another entity or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action, suit or proceeding
if such person acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against expenses (including attorneys
fees) actually and reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of each of Autoshred, Inc., CWI of Missouri, Inc., Rock Road Industries, Inc. and
Tates Transfer Systems, Inc. also provide that any indemnification (unless ordered by a court)
shall be made by the corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances because such person has
met the applicable standard of conduct. Such determination shall be made (i) by the board of
directors by a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a written opinion or
(iii) by the stockholders. Expenses incurred by a director or officer in defending or investigating
a threatened or pending action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the corporation according to the bylaws of the
corporation. The corporation may purchase and maintain insurance on behalf of any person who is or
was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
any liability asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would have the power or
the obligation to indemnify him or her against such liability under the bylaws of the corporation.
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The bylaws of Thomas Disposal Service, Inc. provide that each director or officer or former
director or former officer of the corporation shall be indemnified by the corporation against
liabilities, expenses, counsel fees and costs reasonably incurred by such person in connection
with, or arising out of, any action, suit, proceeding or claim in which such person is made a party
by reason of being or having been such director or officer of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Belleville Landfill, Inc.
(b) Missouri City Landfill, LLC and St. Joseph Landfill, LLC are organized as limited liability
companies under the laws of Missouri.
The Missouri Limited Liability Company Act is silent as to indemnification.
Section 347.088(1) of the Missouri Limited Liability Company Act provides that, except as
otherwise provided in the operating agreement, a manager or member-manager shall not be liable for
any action taken or any failure to take action if he or she performs his duties in good faith, with
the care a corporate officer of like position would exercise under similar circumstances and in the
manner a reasonable person would believe to be in the best interest of the limited liability
company.
The operating agreement of each of the Missouri limited liability company registrants provides
that the company shall defend, indemnify and save harmless the sole member, its officers and
directors, and any officers of the company, from and against all losses, claims, costs, liabilities
and damages incurred by such person by reason of any act performed or omitted to be performed by
such person in connection with the business of the company, including attorneys fees incurred by
such person in connection with the defense of any action based on any such act or omission;
provided, however, no such person shall be indemnified from any liability for fraud, bad faith,
willful misconduct or gross negligence.
Montana Registrant: Allied Waste Systems of Montana, LLC is organized as a limited liability
company under the laws of Montana.
Section 35-8-107(12) of the Montana Limited Liability Company Act permits a Montana limited
liability company to indemnify a member, agent or employee of the company under certain
circumstances and subject to certain limitations.
The operating agreement of Allied Waste Systems of Montana, LLC provides that the company
shall defend, indemnify and save harmless the sole member, its officers and directors, and any
officers of the company, from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Nebraska Registrant: Oscars Collection System of Fremont, Inc. is incorporated under the laws of
Nebraska.
Sections 21-20, 102 et seq. of the Nebraska Business Corporation Act authorize a court to
award, or a corporations board of directors to grant, indemnity to officers and directors of the
corporation under certain circumstances and subject to certain limitations.
Sections 21-2095(4) and 21-2099(4) of the Nebraska Business Corporation Act provide that a
director or officer of a corporation shall not be liable for any action taken as a director or
officer or any failure to take any action if he or she performed the duties of his or her office
(i) in good faith, (ii) with the care an ordinarily prudent person in a
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like position would exercise under similar circumstances and (iii) in a manner he or she reasonably
believes to be in the best interests of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Oscars Collection System of Fremont, Inc.
Nevada Registrants: Browning-Ferris Industries Chemical Services, Inc., Republic Dumpco, Inc.,
Republic Environmental Technologies, Inc. and Republic Silver State Disposal, Inc. are incorporated
under the laws of Nevada.
Section 78.7502 of the General Corporation Law of Nevada authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers and directors of the corporation
under certain circumstances and subject to certain limitations.
Section 78.138(7) of the General Corporation Law of Nevada provides that, unless the articles
of incorporation or an amendment thereto filed after October 1, 2003 provide for greater individual
liability, a director or officer is not individually liable to the corporation or its stockholders
or creditors for any damages as a result of any act or failure to act in such persons capacity as
a director or officer unless it is proven that (i) such persons act or failure to act constituted
a breach of his or her fiduciary duties as a director or officer and (ii) such persons breach of
those duties involved intentional misconduct, fraud or a knowing violation of law.
The bylaws of each of the Nevada corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Nevada corporation registrants also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition
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of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount if it shall ultimately be determined that he or she is not entitled
to be indemnified by the corporation according to the bylaws of the corporation. The corporation
may purchase and maintain insurance on behalf of any person who is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power or the obligation to indemnify him or her
against such liability under the bylaws of the corporation.
New Jersey Registrants:
(a) Allied Waste of New Jersey, Inc., American Materials Recycling Corp., Automated Modular
Systems, Inc., BFI Energy Systems of Essex County, Inc., BFI Transfer Systems of New Jersey, Inc.,
BFI Waste Systems of New Jersey, Inc., Browning-Ferris Industries of New Jersey, Inc., Louis Pinto
& Son, Inc., Sanitation Contractors, Newco Waste Systems of New Jersey, Inc., Tom Lucianos
Disposal Service, Inc. and Total Solid Waste Recyclers, Inc. are incorporated under the laws of New
Jersey.
Section 14A:3-5 of the Business Corporation Act of New Jersey authorizes a court to award, or
a corporations board of directors to grant, indemnity to an officer, director, employee or agent
of the corporation under certain circumstances and subject to certain limitations.
Section 14A:2-7(3) of the New Jersey Business Corporation Act permits a corporation to provide
in its articles of incorporation that a director or officer of the corporation shall not be
personally liable to the corporation or its shareholders for damages for any breach of duty owed to
the corporation or its shareholders, subject to certain limitations.
The articles of incorporation of American Materials Recycling Corp. provide for
indemnification of all corporate agents to the fullest extent permitted by the Business Corporation
Act of New Jersey.
The articles of incorporation of American Material Recycling Corp. also provide that the
personal liability of the directors of the corporation are eliminated to the fullest extent
permitted by the Business Corporation Act of New Jersey.
The bylaws of each of American Materials Recycling Corp., Automated Modular Systems, Inc., BFI
Energy Systems of Essex County, Inc., BFI Transfer Systems of New Jersey, Inc., BFI Waste Systems
of New Jersey, Inc., Browning-Ferris Industries of New Jersey, Inc., Louis Pinto & Son, Inc.,
Sanitation Contractors, Newco Waste Systems of New Jersey, Inc., Tom Lucianos Disposal Service,
Inc. and Total Solid Waste Recyclers, Inc. provide that the corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense
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or settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of each of American Materials Recycling Corp., Automated Modular Systems, Inc., BFI
Energy Systems of Essex County, Inc., BFI Transfer Systems of New Jersey, Inc., BFI Waste Systems
of New Jersey, Inc., Browning-Ferris Industries of New Jersey, Inc., Louis Pinto & Son, Inc.,
Sanitation Contractors, Newco Waste Systems of New Jersey, Inc., Tom Lucianos Disposal Service,
Inc. and Total Solid Waste Recyclers, Inc. also provide that any indemnification (unless ordered by
a court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Waste of New Jersey, Inc.
(b) Allied Transfer Systems of New Jersey, LLC and Allied Waste Systems of New Jersey, LLC are
organized as limited liability companies under the laws of New Jersey.
Section 42:2B-10 of the New Jersey Limited Liability Company Act permits a limited liability
company to indemnify a member, manager or other person from and against any and all claims and
demands whatsoever.
The operating agreement of each of the New Jersey limited liability company registrants
provides that the company shall defend, indemnify and save harmless the sole member, its officers
and directors, and any officers of the company, from and against all losses, claims, costs,
liabilities and damages incurred by such person by reason of any act performed or omitted to be
performed by such person in connection with the business of the company, including attorneys fees
incurred by such person in connection with the defense of any action based on any such act or
omission; provided, however, no such person shall be indemnified from any liability for fraud, bad
faith, willful misconduct or gross negligence.
New Mexico Registrant: Allied Waste Industries (New Mexico), Inc. is incorporated under the laws of
New Mexico.
Section 53-11-4.1 of the New Mexico Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
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The bylaws of Allied Waste Industries (New Mexico), Inc. provide for indemnification for any
person who is or was a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee, agent or fiduciary of another
foreign or domestic entity that may be incurred by him or her in connection with or resulting from
any claim as long as such person acted in good faith and reasonably believed that his or her
conduct was in the best interest of (in the case of conduct in his or her official capacity with
the corporation) or not opposed to (in all other cases) the best interest of the corporation. In
the case of any criminal proceeding, such person must have had reasonable cause to believe his or
her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful. The
determination whether such person has met the required standards of conduct shall be made (i) by
the board of directors by majority vote of a quorum consisting of directors not at the time parties
to the claim, and if such a quorum cannot be obtained; then (ii) by majority vote of a committee
duly designated by the board of directors consisting solely of two or more directors not at the
time parties to the claim; and if such a committee cannot be constituted; then (iii) by the
shareholders, and if there are no shareholders who are not also directors who are a party to the
claim; then (iv) by special legal counsel selected by a majority vote of the full board of
directors (in which selection, a director who is a party to the claim may participate). Expenses
incurred by such person may be advanced by the corporation prior to the final disposition of the
claim under certain circumstances.
New York Registrants:
(a) Allied Waste of Long Island, Inc., American Transfer Company, Inc., Browning-Ferris Industries
of New York, Inc., CECOS International, Inc., Island Waste Services Ltd., Tricil (N.Y.), Inc. and
Waste Services of New York, Inc. are incorporated under the laws of New York.
Article 7 of the New York Business Corporations Law authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer or director of the corporation
under certain circumstances and subject to certain limitations.
Section 402(b) of the New York Business Corporations Law permits a corporation to provide in
its articles of incorporation that a director of the corporation shall not be personally liable to
the corporation or its shareholders for damages for any breach of duty in his or her capacity as
director, subject to certain limitations.
The articles of incorporation of each of Allied Waste of Long Island, Inc. and Waste Services
of New York, Inc. provide that no director shall be personally liable to the corporation or its
shareholders for damages for any breach of duty in such capacity, except that this provision shall
not eliminate or limit the liability of any director if a judgment or other final adjudication
adverse to such director establishes that such directors act or omissions (i) were in bad faith,
(ii) involved intentional misconduct or a knowing violation of law, (iii) were such that such
director personally gained a financial profit or other advantage to which such director was not
legally entitled or (iv) that such directors acts violated Section 719 of the New York Business
Corporations Law relating to an unlawful dividend, repurchase or distribution of assets, nor shall
this provision eliminate or limit the liability of any director for any act or omission prior to
the adoption of this provision.
The bylaws of each of Allied Waste of Long Island, Inc., American Transfer Company, Inc.,
Browning-Ferris Industries of New York, Inc. and CECOS International, Inc. provide that the
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
II-46
reasonable cause to believe his conduct was unlawful. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against expenses (including attorneys fees) actually and reasonably
incurred by him or her in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation; except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
The bylaws Allied Waste of Long Island, Inc., American Transfer Company, Inc., Browning-Ferris
Industries of New York, Inc. and CECOS International, Inc. also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the corporation would
have the power or the obligation to indemnify him or her against such liability under the bylaws of
the corporation.
The bylaws of Tricil (N.Y.), Inc. provide that the corporation shall indemnify any person made
or threatened to be made a party to any action, suit or proceeding by reason of the fact that such
person is or was a director or officer of the corporation, or of any other corporation which such
person served as such at the request of the corporation, against all judgments, fines, amounts paid
in settlement and reasonable expenses, including attorneys fees, actually and necessarily incurred
by him or her in connection with the defense of such action, suit or proceeding, or in connection
with any appeal therein, to the fullest extent and in the manner set forth in and permitted by the
New York Business Corporations Law. The board of directors, in its discretion, shall have the power
to purchase and maintain insurance in accordance with the New York Business Corporations Law.
There is no provision for indemnification or insurance in the bylaws of Island Waste Services
Ltd. or Waste Services of New York, Inc.
(b) Allied Waste Niagara Falls Landfill, LLC, Allied Waste Transfer Services of New York, LLC,
Menands Environmental Solutions, LLC and Wayne County Land Development, LLC are organized as
limited liability companies under the laws of New York.
Section 420 of the New York Limited Liability Company Law authorizes a limited liability
company to indemnify any member, manager or other person under certain circumstances and subject to
certain limitations.
II-47
Section 409(c) of the New York Limited Liability Company Law provides that a manager shall
have no liability by reason of being or having been a manager of a limited liability company if the
manager performs his or her duties in good faith and with that degree of care that an ordinarily
prudent person in a like position would use under similar circumstances.
The operating agreement of each of the New York limited liability company registrants provides
that the company shall defend, indemnify and save harmless the sole member, its officers and
directors, and any officers of the company, from and against all losses, claims, costs, liabilities
and damages incurred by such person by reason of any act performed or omitted to be performed by
such person in connection with the business of the company, including attorneys fees incurred by
such person in connection with the defense of any action based on any such act or omission;
provided, however, no such person shall be indemnified from any liability for fraud, bad faith,
willful misconduct or gross negligence.
North Carolina Registrants:
(a) Lake Norman Landfill, Inc. and Republic Services Real Estate Holding, Inc. are incorporated
under the laws of North Carolina.
Part 5 of Article 8 of the North Carolina Business Corporation Act authorizes a court to
award, or a corporations board of directors to grant, indemnity to an officer, director, employee
or agent of the corporation under certain circumstances and subject to certain limitations.
Section 55-2-02(b)(3) of the North Carolina Business Corporation Act permits a corporation to
provide in its articles of incorporation that a director of the corporation shall not be personally
liable in an action by or in the right of the corporation for monetary damages for any breach of
duty as a director under certain circumstances and subject to certain limitations. Sections
55-8-30(d) and 55-8-42(d) provide that a director or officer of a corporation shall not be liable
for any action taken as a director or officer or any failure to take any action if he performed the
duties of his or her office (i) in good faith, (ii) with the care an ordinarily prudent person in a
like position would exercise under similar circumstances and (iii) in a manner he or she reasonably
believes to be in the best interests of the corporation.
The articles of incorporation of Lake Norman Landfill, Inc. provide that, to the fullest
extent permitted by the North Carolina Business Corporation Act, no person who is serving or has
served as a director of the corporation shall be liable to the corporation nor to any of its
shareholders for monetary damages for breach of duty as a director.
The bylaws of each of the North Carolina corporation registrants provide that the corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and
II-48
in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the North Carolina corporation registrants also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of his or her status as such, whether or not the corporation
would have the power or the obligation to indemnify him or her against such liability under the
bylaws of the corporation.
(b) Allied Waste Systems of North Carolina, LLC, Allied Waste Transfer Services of North Carolina,
LLC and Republic Services of North Carolina, LLC are organized as limited liability companies under
the laws of North Carolina.
Sections 53C-3-31 and 53C-3-32 of the North Carolina Limited Liability Company Act authorize a
limited liability company to indemnify a member, manager, director or executive of the company
under certain circumstances and subject to certain limitations.
Section 57C-3-22(d) of the North Carolina Limited Liability Company Act provides that a
manager shall not be liable for any action taken as a manager or any failure to take any action if
the manager performs the duties of his or her office (i) in good faith, (ii) with the care an
ordinary prudent person in a like position would exercise under similar circumstances and (iii) in
the manner the manager reasonably believes to be in the best interests of the limited liability
company.
The operating agreement of each of Allied Waste Systems of North Carolina, LLC and Allied
Waste Transfer Services of North Carolina, LLC provides that the company shall defend, indemnify
and save harmless the sole member, its officers and directors, and any officers of the company,
from and against all losses, claims, costs, liabilities and damages incurred by such person by
reason of any act performed or omitted to be performed by such person in connection with the
business of the company, including attorneys fees incurred by such person in connection with the
defense of any action based on any such act or omission; provided, however, no such person shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
There is no provision for indemnification or insurance in the certificate of formation or the
operating agreement of Republic Services of North Carolina, LLC.
Ohio Registrants:
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(a) Celina Landfill, Inc., Cherokee Run Landfill, Inc., Dempsey Waste Systems II, Inc., Noble Road
Landfill, Inc., Ohio Republic Contracts, Inc., Port Clinton Landfill, Inc., Preble County Landfill,
Inc., R.C. Miller Enterprises, Inc., R.C. Miller Refuse Service Inc., Ross Bros. Waste & Recycling
Co., The Ecology Group, Inc. and Williams County Landfill Inc. are incorporated under the laws of
Ohio.
Section 1701.13(E) of the Ohio General Corporation Law authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
Section 1701.59(D) of the Ohio General Corporation Law provides that, unless otherwise
provided in the articles of incorporation or bylaws, a director shall be liable in damages for any
action that the director takes or fails to take as a director only if it is proved by clear and
convincing evidence in a court of competent jurisdiction that the directors action or failure to
act involved an act or omission undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best interests of the corporation.
The articles of incorporation of R.C. Miller Enterprises, Inc. provide that the corporation
shall indemnify and hold harmless each person who shall serve at any time as a director or officer
of the corporation from and against any and all claims and liabilities to which such person shall
become subject by reason of his or her having been a director or officer of the corporation, or by
reason of any action alleged to have been taken or omitted by him or her as such director or
officer, and shall reimburse each such person for all legal and other expenses reasonably incurred
by such person in connection with any such claim or liability; provided, however, that no such
person shall be indemnified against or be reimbursed for any expense incurred arising out of such
persons own negligence or willful misconduct.
The bylaws of Celina Landfill, Inc. provide that each director, officer and non-officer
employee of the corporation shall be indemnified by the corporation against the costs and expenses
reasonably incurred by such person in connection with the defense of any action, suit or proceeding
to which such person is made a party by reason of being or having been a director, officer or
non-officer employee of the corporation, except with respect to matters as to which such person
shall be adjudged in such action to be liable for dereliction or negligence in the performance of
such persons duties as director, officer or non-officer employee.
The bylaws of Cherokee Run Landfill, Inc. provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action threatened or instituted directly by the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer, employee or agent of
another entity or other enterprise, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The corporation may indemnify or agree to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action or suit which is
threatened or instituted by the corporation directly (rather than a derivative action in the right
of the corporation) to procure a judgment in its favor by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, trustee, officer, employee or agent of another entity or other
enterprise, against expenses (including attorneys fees) actually and reasonably incurred by him or
her in connection with such action or suit of such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the corporation, except
that no such indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the corporation unless
II-50
and only to the extent that the Court of Common Pleas of Madison County, Ohio or the court in which
such action or suit was brought shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper.
The bylaws of Cherokee Run Landfill, Inc. also provide that, to the extent that a director,
trustee, officer, employee or agent has been successful on the merits or otherwise in defense of
any such action, suit or proceeding or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys fees) actually and reasonably
incurred by him or her in connection therewith. The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, trustee, officer, employee, or
agent of another entity or other enterprise, against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him or her against such liability under the
bylaws of the corporation.
The bylaws of each of Dempsey Waste Systems II, Inc., Noble Road Landfill, Inc., Ohio Republic
Contracts, Inc., Port Clinton Landfill, Inc., Preble County Landfill, Inc., R.C. Miller
Enterprises, Inc., R.C. Miller Refuse Service Inc., Ross Bros. Waste & Recycling Co., The Ecology
Group, Inc. and Williams County Landfill Inc. provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of each of Dempsey Waste Systems II, Inc., Noble Road Landfill, Inc., Ohio Republic
Contracts, Inc., Port Clinton Landfill, Inc., Preble County Landfill, Inc., R.C. Miller
Enterprises, Inc., R.C. Miller Refuse Service Inc., Ross Bros. Waste & Recycling Co., The Ecology
Group, Inc. and Williams County Landfill Inc. also provide that any indemnification (unless ordered
by a court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking
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by or on behalf of such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the corporation according to the
bylaws of the corporation. The corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another entity or other enterprise
against any liability asserted against him or her and incurred by him or her in any such capacity,
or arising out of his or her status as such, whether or not the corporation would have the power or
the obligation to indemnify him or her against such liability under the bylaws of the corporation.
(b) Allied Waste Transfer Services of Lima, LLC, AWIN Leasing II, LLC, Carbon Limestone
Landfill, LLC, County Environmental Landfill, LLC, County Land Development Landfill, LLC, General
Refuse Service of Ohio, L.L.C., Lorain County Landfill, LLC, Lucas County Landfill, LLC, Republic
Ohio Contracts, LLC, Republic Services of Ohio Hauling, LLC, Republic Services of Ohio I, LLC,
Republic Services of Ohio II, LLC, Republic Services of Ohio III, LLC and Republic Services of Ohio
IV, LLC are organized as limited liability companies under the laws of Ohio.
Section 1705.32 of the Ohio Revised Code authorizes a court to award, or a limited liability
company to grant, indemnity to a manager, officer, employee or agent of the company under certain
circumstances and subject to certain limitations.
Section 1705.29(D) of the Ohio Revised Code provides that, unless otherwise provided in the
articles of incorporation or operating agreement, a manager of a limited liability company shall be
liable for damages for any action that such manager takes or fails to take as a manager only if it
is proved by clear and convincing evidence in a court with jurisdiction that his action or failure
to act involved an act or omission undertaken with deliberate intent to cause injury to the company
or undertaken with reckless disregard for the best interests of the company.
The operating agreement of each of AWIN Leasing II, LLC and General Refuse Service of Ohio,
L.L.C. provides that the company shall defend, indemnify and save harmless the sole member, its
officers, and any officers of the company from and against all losses, claims, costs, liabilities
and damages incurred by such person by reason of any act performed or omitted to be performed by
such person in connection with the business of the company, including attorneys fees incurred by
such person in connection with the defense of any action based on any such act or omission;
provided, however, no such person shall be indemnified from any liability for fraud, bad faith,
willful misconduct or gross negligence.
The operating agreement of each of Allied Waste Transfer Services of Lima, LLC, Carbon
Limestone Landfill, LLC, County Environmental Landfill, LLC, County Land Development Landfill, LLC,
Lorain County Landfill, LLC and Lucas County Landfill, LLC provides for identical indemnification
as described in the preceding paragraph, except that such indemnification is also provided to the
directors of the sole member of the company.
There is no provision for indemnification or insurance in the certificate of formation or the
operating agreement of Republic Ohio Contracts, LLC, Republic Services of Ohio Hauling, LLC,
Republic Services of Ohio I, LLC, Republic Services of Ohio II, LLC, Republic Services of Ohio III,
LLC or Republic Services of Ohio IV, LLC.
Oklahoma Registrants:
(a) ADS, Inc., Allied Waste Services of Stillwater, Inc., American Disposal Services of Missouri,
Inc. and Pittsburg County Landfill, Inc. are incorporated under the laws of Oklahoma.
Section 1031
of the Oklahoma General Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
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Section 1006(B)(7) of the Oklahoma General Corporation Act permits a corporation to provide in
its certificate of incorporation that a director of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for any breach of a fiduciary duty as a
director, subject to certain limitations.
The certificate of incorporation of each of ADS, Inc., American Disposal Services of Missouri,
Inc. and Pittsburg County Landfill, Inc. provides that, to the fullest extent permitted by the
Oklahoma General Corporation Act, a director of the corporation shall not be liable to the
corporation or its shareholders for monetary damages for breach of fiduciary duty as a director.
The bylaws of each of the Oklahoma corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Oklahoma corporation registrants also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against him or her and incurred by him or
her in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power or the obligation to indemnify him or her against such liability
under the bylaws of the corporation.
(b) BFI Waste Systems of Oklahoma, LLC and Oklahoma City Landfill, L.L.C. are organized as limited
liability companies under the laws of Oklahoma.
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Section 2003 and 2017 of the Oklahoma Limited Liability Act permit a limited liability company
to indemnify a member, manager, agent or employee of the company under certain circumstances and
subject to certain limitations.
Section 2016(4) of the Oklahoma Limited Liability Company Act provides that a manager shall
not be liable for any action taken as a manager or any failure to take any action if the manager
performed the duties of the office in compliance with the business judgment rule as applied in
Oklahoma to directors and officers of a corporation.
The operating agreement of BFI Waste Systems of Oklahoma, LLC provides that the company shall
defend, indemnify and save harmless the sole member, its officers, and any officers of the company
from and against all losses, claims, costs, liabilities and damages incurred by such person by
reason of any act performed or omitted to be performed by such person in connection with the
business of the company, including attorneys fees incurred by such person in connection with the
defense of any action based on any such act or omission; provided, however, no such person shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
The operating agreement of Oklahoma City Landfill, L.L.C. provides for identical
indemnification as described in the preceding paragraph, except that such indemnification is also
provided to the directors of the sole member of the company.
Oregon Registrants:
(a) Agri-Tech, Inc. of Oregon, Albany Lebanon Sanitation, Inc., Bio-Med of Oregon, Inc., Capitol
Recycling and Disposal, Inc., Corvallis Disposal Co., Dallas Disposal Co., Grants Pass Sanitation,
Inc., Keller Drop Box, Inc., McInnis Waste Systems, Inc., Peltier Real Estate Company, Portable
Storage Co., Rossman Sanitary Service, Inc., Source Recycling, Inc., United Disposal Service, Inc.,
Valley Landfills, Inc., Waste Control Systems, Inc., WDTR, Inc. and Willamette Resources, Inc. are
incorporated under the laws of Oregon.
Sections 60.387 et seq. of the Oregon Business Corporation Act authorize a court to award, or
a corporations board of directors to grant, indemnity to an officer, director, employee or agent
of the corporation under certain circumstances and subject to certain limitations.
Section 60.047(2)(d) of the Oregon Business Corporation Act permits a corporation to provide
in its articles of incorporation that a director of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for conduct as a director, subject to
certain limitations. Sections 60.357 and 60.377 of the Oregon Business Corporation Act provide that
a director or officer of a corporation shall not be liable for any action taken as a director or
officer or any failure to take any action if he or she performed the duties of the office in good
faith, with the care an ordinarily prudent person in a like position would exercise under similar
circumstances and in a manner he or she reasonably believes to be in the best interests of the
corporation.
The articles of incorporation of each of Agri-Tech, Inc. of Oregon, Albany Lebanon
Sanitation, Inc., Bio-Med of Oregon, Inc., Capitol Recycling and Disposal, Inc., Corvallis Disposal
Co., Dallas Disposal Co., Grants Pass Sanitation, Inc., Keller Drop Box, Inc., Peltier Real Estate
Company, Portable Storage Co., Source Recycling, Inc., United Disposal Service, Inc., Valley
Landfills, Inc., Waste Control Systems, Inc., WDTR, Inc. and Willamette Resources, Inc. provide
that the corporation shall indemnify, to the fullest extent permitted by law, any person who is
made or threatened to be made a party to, witness in, or otherwise involved in, any action, suit or
proceeding by reason of the fact that such person is or was a director or officer of the
corporation or any of its subsidiaries. The corporation shall advance all reasonable expenses
incurred by such person in advance of the proceeding to the fullest extent required or authorized
under the law.
The articles of incorporation of each of Agri-Tech, Inc. of Oregon, Albany Lebanon
Sanitation, Inc., Bio-Med of Oregon, Inc., Capitol Recycling and Disposal, Inc., Corvallis Disposal
Co., Dallas Disposal Co., Grants Pass Sanitation, Inc., Keller Drop Box, Inc., Peltier Real Estate
Company, Portable Storage Co., Source Recycling, Inc.,
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United Disposal Service, Inc., Valley Landfills, Inc., Waste Control Systems, Inc., WDTR, Inc. and
Willamette Resources, Inc. provide that, to the fullest extent permitted by law, no director of the
corporation shall be personally liable to the corporation or its shareholders for monetary damages
for conduct as a director, except that this provision shall not eliminate or limit the liability of
a director for (i) any act or omission occurring before the date this provision became effective,
(ii) any breach of a directors duty of loyalty to the corporation or its shareholders, (iii) acts
or omissions not in good faith or that involve intentional misconduct or a knowing violation of
law, (iv) any distribution to shareholders that is unlawful under the Oregon Business Corporation
Act or successor statute or (v) any transaction from which the director derived an improper
personal benefit.
The bylaws of each of the Oregon corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Oregon corporation registrants also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the corporation would
have the power or the obligation to indemnify him or her against such liability under the bylaws of
the corporation.
(b) Allied Waste Transfer Services of Oregon, LLC is organized as a limited liability company under
the laws of Oregon.
II-55
Section 63.160 of the Oregon Limited Liability Company Act permits a limited liability company
to indemnify a member, manager, employee or agent of the company under certain circumstances and
subject to certain limitations.
The operating agreement of Allied Waste Transfer Services of Oregon, LLC provides that the
company shall defend, indemnify and save harmless the sole member, its officers and directors, and
any officers of the company, from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
Pennsylvania Registrants:
(a) Allied Acquisition Pennsylvania, Inc., McCusker Recycling, Inc. and New Morgan Landfill
Company, Inc. are incorporated under the laws of Pennsylvania.
Subchapter D of Subpart B of Part II of the Pennsylvania Business Corporation Law authorizes a
court to award, or a corporations board of directors to grant, indemnity to an officer, director,
employee or agent of the corporation under certain circumstances and subject to certain
limitations.
Section 1712(c) of the Pennsylvania Business Corporation Law provides that, except as
otherwise provided in the bylaws, an officer of a corporation shall not be liable by reason of
having been an officer of the corporation if such officer performs his or her duties as an officer
in good faith, in a manner he or she reasonably believes to be in the best interests of the
corporation and with such care, including reasonable inquiry, skill and diligence, as a person of
ordinary prudence would use under similar circumstances.
The bylaws of each of McCusker Recycling, Inc. and New Morgan Landfill Company, Inc. provide
that the corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding (other than an action by
or in the right of the corporation) by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of McCusker Recycling, Inc. and New Morgan Landfill Company, Inc. also
provide that any indemnification (unless ordered by a court) shall be made by the corporation only
as authorized in the specific
II-56
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the corporation would
have the power or the obligation to indemnify him or her against such liability under the bylaws of
the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Acquisition Pennsylvania, Inc.
(b) Allied Waste Systems of Pennsylvania, LLC, BFI Transfer Systems of Pennsylvania, LLC, BFI Waste
Services of Pennsylvania, LLC, Greenridge Reclamation, LLC and Greenridge Waste Services, LLC are
organized as limited liability companies under the laws of Pennsylvania.
Section 8945 of the Pennsylvania Limited Liability Company Law permits a limited liability
company to indemnify a member, manager or other person under certain circumstances and subject to
certain limitations.
The operating agreement of each of the Pennsylvania limited liability company registrants
provides that the company shall defend, indemnify and save harmless the sole member, its officers,
and any officers of the company from and against all losses, claims, costs, liabilities and damages
incurred by such person by reason of any act performed or omitted to be performed by such person in
connection with the business of the company, including attorneys fees incurred by such person in
connection with the defense of any action based on any such act or omission; provided, however, no
such person shall be indemnified from any liability for fraud, bad faith, willful misconduct or
gross negligence.
South Carolina Registrants:
(a) NationsWaste Catawba Regional Landfill, Inc. is incorporated under the laws of South Carolina.
Article 5 of Chapter 8 of the South Carolina Business Corporation Act authorizes a court to
award, or a corporations board of directors to grant, indemnity to an officer, director, employee
or agent of the corporation under certain circumstances and subject to certain limitations.
Sections 33-8-300(d) and 33-8-420(d) of the South Carolina Business Corporation Act provide
that a director or officer shall not be liable for any action taken as a director or officer or any
failure to take any action if such director or officer performed the duties of his or her office
(i) in good faith, (ii) with the care an ordinarily prudent person in a like position would
exercise under similar circumstances and (iii) in a manner he or she reasonably believes to be in
the best interests of the corporation and its shareholders.
The articles of incorporation of NationsWaste Catawba Regional Landfill, Inc. provide that the
corporation shall, to the fullest extent permitted by the South Carolina Business Corporation Act,
indemnify any and all persons whom it shall have the power to indemnify under the law from and
against any and all of the expenses, liabilities or other matters referred to in or covered by the
law.
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The bylaws of NationsWaste Catawba Regional Landfill, Inc. provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of NationsWaste Catawba Regional Landfill, Inc. also provide that any
indemnification (unless ordered by a court) shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of conduct. Such
determination shall be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the corporation would
have the power or the obligation to indemnify him or her against such liability under the bylaws of
the corporation.
(b) Flint Hill Road, LLC is organized as a limited liability company under the laws of South
Carolina.
Section 34-44-403 of the South Carolina Uniform Limited Liability Company Act authorizes a
limited liability company to indemnify a member or manager of the company under certain
circumstances and subject to certain limitations.
The operating agreement of Flint Hill Road, LLC provides that the company shall defend,
indemnify and save harmless the sole member, its officers, and any officers of the company from and
against all losses, claims, costs, liabilities and damages incurred by such person by reason of any
act performed or omitted to be performed by such person in connection with the business of the
company, including attorneys fees incurred by such person in connection with the defense of any
action based on any such act or omission; provided, however, no such person shall be indemnified
from any liability for fraud, bad faith, willful misconduct or gross negligence.
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Tennessee Registrants:
(a) Allied Waste Industries of Tennessee, Inc., Barker Brothers Waste, Incorporated,
Browning-Ferris Industries of Tennessee, Inc. and Northwest Tennessee Disposal Corporation are
incorporated under the laws of Tennessee.
Part 5 of Chapter 18 of the Tennessee Business Corporation Act authorizes a court to award, or
a corporations board of directors to grant, indemnity to an officer, director, employee or agent
of the corporation under certain circumstances and subject to certain limitations.
Sections 48-18-301(d) and 48-18-403(d) of the Tennessee Business Corporation Act provide that
a director or officer shall not be liable for any action taken as a director or officer or any
failure to take any action if the director or officer performed the duties of his or her office (i)
in good faith, (ii) with the care an ordinarily prudent person in a like position would exercise
under similar circumstances and (iii) in a manner the director reasonably believes to be in the
best interests of the corporation.
The bylaws of each of Barker Brothers Waste, Incorporated, Browning-Ferris Industries of
Tennessee, Inc. and Northwest Tennessee Disposal Corporation provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of Barker Brothers Waste, Incorporated, Browning-Ferris Industries of
Tennessee, Inc. and Northwest Tennessee Disposal Corporation also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or
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was a director or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another entity or other enterprise against
any liability asserted against or incurred by such person in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power or the obligation to
indemnify him or her against such liability under the bylaws of the corporation.
There is no provision for indemnification or insurance in the articles of incorporation or
bylaws of Allied Waste Industries of Tennessee, Inc.
(b) Madison County Development, LLC is organized as a limited liability company under the laws of
Tennessee.
Section 48-243-101 of the Tennessee Limited Liability Company Act authorizes a court to award,
or a limited liability company to grant, indemnity to a governor, member, manager, partner,
trustee, employee, independent contractor or agent of the company under certain circumstances and
subject to certain limitations.
Sections 48-240-102(e) and 48-241-111(d) of the Tennessee Limited Liability Company Act
provide that a member or manager shall not be liable for any action taken as a member or manager or
any failure to take any action if the member or manager performed the duties of the position (i) in
good faith, (ii) with the care an ordinarily prudent person in a like position would exercise under
similar circumstances and (iii) in a manner the member or manager reasonably believes to be in the
best interest of the LLC.
The operating agreement of Madison County Development, LLC provides that the company shall
defend, indemnify and save harmless the sole member, its officers and directors, and any officers
of the company, from and against all losses, claims, costs, liabilities and damages incurred by
such person by reason of any act performed or omitted to be performed by such person in connection
with the business of the company, including attorneys fees incurred by such person in connection
with the defense of any action based on any such act or omission; provided, however, no such person
shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
Texas Registrants:
(a) Action Disposal, Inc. is incorporated under the laws of Texas.
Section 2.02-1 of the Texas Business Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to an officer, director, employee or agent of
the corporation under certain circumstances and subject to certain limitations.
The bylaws of Action Disposal, Inc. provide that the corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and
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in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of Action Disposal, Inc. also provide that any indemnification (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against or incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the corporation would have
the power or the obligation to indemnify him or her against such liability under the bylaws of the
corporation.
(b) Total Roll-Offs, L.L.C. is organized as a limited liability company under the laws of Texas.
Section 2.20 of the Texas Limited Liability Company Act permits a limited liability company to
indemnify a member, manager, officer or other person under certain circumstances and subject to
certain limitations.
The operating agreement of Total Roll-Offs, L.L.C. provides that the company shall defend,
indemnify and save harmless the sole member, its officers, and any officers of the company from and
against all losses, claims, costs, liabilities and damages incurred by such person by reason of any
act performed or omitted to be performed by such person in connection with the business of the
company, including attorneys fees incurred by such person in connection with the defense of any
action based on any such act or omission; provided, however, no such person shall be indemnified
from any liability for fraud, bad faith, willful misconduct or gross negligence.
(c) Desarrollo del Rancho La Gloria TX, LP, El Centro Landfill, L.P., Frontier Waste Services,
L.P., Republic Waste Services of Texas, Ltd. and South Central Texas Land Co. TX, LP are organized
as limited partnerships under the laws of Texas.
Chapter 8 of the Texas Revised Limited Partnership Act authorizes a court to award, or a
limited partnership to grant, indemnity to a person serving as part of the governing authority of a
limited partnership, officer, employee or agent of the corporation under certain circumstances and
subject to certain limitations.
The Texas Revised Limited Partnership Act is silent as to exculpation of partners.
The agreement of limited partnership of each of Desarrollo del Rancho La Gloria TX, LP,
Frontier Waste Services, L.P. and South Central Texas Land Co. TX, LP provides that the partnership
shall defend, indemnify and save harmless the partners and their officers and directors from and
against all losses, claims, costs, liabilities and damages incurred by them by reason of any act
performed or omitted to be performed by them in connection with the business of the partnership,
including attorneys fees incurred by them in connection with the defense of any
II-61
action based on any such act or omission; provided, however, no such person shall be indemnified
from any liability for fraud, bad faith, willful misconduct or gross negligence.
The agreement of limited partnership of El Centro Landfill, L.P. provides that the partnership
shall indemnify the general partner and its officers, directors, shareholders, controlling persons,
employees, agents, affiliates, or assigns thereof, against and save them harmless from any claim,
demand, judgment, or liability, and against and from any loss, cost or expense (including, but not
limited to, attorneys fees and court costs, which may be paid by the partnership as incurred),
which may be made or imposed upon such persons by reason of any (i) act performed for or on behalf
of the partnership or in furtherance of the partnership business, (ii) inaction on the part of such
persons, so long as the party to be indemnified has determined, in good faith, that such course of
conduct was in the best interests of the partnership and said conduct did not constitute gross
negligence or willful misconduct. The expenses (including legal fees and expenses) of such
indemnified persons incurred in defending any proceeding shall be paid by the partnership in
advance of the final disposition of the proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount if it shall ultimately be determined by a court of competent
jurisdiction that such person is not entitled to be indemnified by the partnership as authorized
hereunder. The partnership may purchase and maintain insurance on behalf of the general partner and
the persons covered by the preceding sentence whether or not the partnership would have the power
or obligation to provide indemnification against liability under the provisions of the agreement of
limited partnership.
The agreement of limited partnership of El Centro Landfill, L.P. provides that neither the
general partner, nor its officers, directors, shareholders, controlling persons, employees, agents,
affiliates or assigns thereof, shall be liable, responsible or accountable in damages or otherwise
to the partnership or any partner for any action taken or failure to act on behalf of the
partnership within the scope of the authority conferred on the general partner by the partnership
agreement or by law, so long as such party acted in good faith and on the belief that such course
of conduct was in the best interest of the partnership and such conduct did not constitute gross
negligence or gross misconduct.
There is no provision for indemnification or insurance in the certificate of limited
partnership or the limited partnership agreement of Republic Waste Services of Texas, Ltd.
Utah Registrants:
(a) Allied Waste Transfer Services of Utah, Inc. and Wasatch Regional Landfill, Inc. are
incorporated under the laws of Utah.
Part 9 of the Utah Business Organizations Code authorizes a court to award, or a corporations
board of directors to grant, indemnity to an officer, director, employee, fiduciary or agent of the
corporation under certain circumstances and subject to certain limitations.
Section 16-10a-840(4) of the Utah Business Organizations Code provides that a director or
officer shall not be liable to the corporation, its shareholders or any conservator or receiver or
any assignee or successor-in-interest thereof for any action taken or any failure to take any
action as an officer or director unless (i) the director or officer has failed to perform the
duties of his or her office (1) in good faith, (2) with the care an ordinarily prudent person in a
like position would exercise under similar circumstances and (3) in a manner the director or
officer reasonably believes to be in the best interests of the corporation and (ii) the breach or
failure to perform constitutes gross negligence, willful misconduct or intentional infliction of
harm on the corporation or the shareholders.
The bylaws of each of the Utah corporation registrants provide that the corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a director, officer,
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employee or agent of another entity or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another entity or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
The bylaws of each of the Utah corporation registrants also provide that any indemnification
(unless ordered by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct. Such determination
shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the
corporation according to the bylaws of the corporation. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise against any liability asserted against or incurred by such person in any
such capacity, or arising out of his or her status as such, whether or not the corporation would
have the power or the obligation to indemnify him or her against such liability under the bylaws of
the corporation.
(b) ECDC Environmental, L.C. and Frontier Waste Services (Utah), LLC are organized as limited
liability companies under the laws of Utah.
Part 18 of the Utah Revised Limited Liability Company Act authorizes a court to award, or a
limited liability company to grant, indemnity to a member, manager, employee, fiduciary or agent of
the company under certain circumstances and subject to certain limitations.
Section 48-2c-807(a) of the Utah Revised Limited Liability Company Act provides that a member
or manager shall not be liable or accountable in damages or otherwise to the company or the members
for any action taken or failure to act on behalf of the company unless the act or omission
constitutes (i) gross negligence, (ii) willful misconduct or (iii) a breach of a higher standard of
conduct that would result in greater exposure to liability for the member or manager that is
established in the companys articles of organization or operating agreement.
The articles of organization of Frontier Waste Services (Utah), LLC provide that the company
shall indemnify to the fullest extent permitted by the Utah Limited Liability Company Act any
person or entity who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
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criminal, administrative or investigative by reason of the fact that such person is or was a
member, manager or officer of the company.
The operating agreement of each of ECDC Environmental, L.C. and Frontier Waste Services
(Utah), LLC provides that the company shall defend, indemnify and save harmless the sole member,
its officers, and any officers of the company from and against all losses, claims, costs,
liabilities and damages incurred by such person by reason of any act performed or omitted to be
performed by such person in connection with the business of the company, including attorneys fees
incurred by such person in connection with the defense of any action based on any such act or
omission; provided, however, no such person shall be indemnified from any liability for fraud, bad
faith, willful misconduct or gross negligence.
Virginia Registrants:
(a) 623 Landfill, Inc. is incorporated under the laws of Virginia.
Article 10 of the Virginia Stock Corporation Act authorizes a court to award, or a
corporations board of directors to grant, indemnity to officers and directors of the corporation
under certain circumstances and subject to certain limitations.
Section 13.1-690(C) of the Virginia Stock Corporation Act provides that a director shall not
be liable for any action taken as a director or any failure to take any action if such director
performed the duties of the office in accordance with his or her good faith business judgment of
the best interests of the corporation.
The articles of incorporation of 623 Landfill, Inc. provide that every person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding of any kind or was or is the subject of any claim by reason of his being or having been
a director or officer of the corporation or by reason of his serving or having served at the
request of the corporation as a director, officer, employee or agent of another entity or other
enterprise shall be indemnified by the corporation against expenses (including attorneys fees),
judgments, fines, penalties, awards, costs, amounts paid in settlement and liabilities of all
kinds, actually and reasonably incurred by such person in connection with, or resulting from, such
action, suit, proceeding or claim. Such indemnification is only allowed if such person acted in
good faith and in the manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudicated
to be liable to the corporation for negligence or misconduct in the performance of his duty to the
corporation unless, and only to the extent that, the court in which such action, suit or proceeding
was brought shall determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity.
Any indemnification under the preceding paragraph (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that indemnification of
such person is proper in the circumstances because he or she had met the applicable standard of
conduct set forth in said paragraph. Such determination may be made either (i) by the board of
directors of the corporation by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding, (ii) if such a quorum is not obtainable or, even if
obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by or in respect of any such person
in connection with any such action, suit or proceeding, whether criminal, administrative,
arbitrative or investigative, may be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by, or on behalf of, such person to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified by the corporation.
The board of directors shall have the power to indemnify its other employees and agents to the same
extent as provided in the articles of incorporation with respect to its directors and officers.
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The bylaws of 623 Landfill, Inc. provide that the corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of 623 Landfill, Inc. also provide that any indemnification (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against or incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the corporation would have
the power or the obligation to indemnify him or her against such liability under the bylaws of the
corporation.
(b) Cumberland County Development Company, LLC, Obscurity Land Development, LLC and Republic
Services of Virginia, LLC are organized as limited liability companies under the laws of Virginia.
Section 13.1-1009(16) of the Virginia Limited Liability Company Act permits a limited
liability company to indemnify members, managers or other persons from and against any and all
claims and demands whatsoever.
The operating agreement of each of Cumberland County Development Company, LLC and Obscurity
Land Development, LLC provides that the company shall defend, indemnify and save harmless the sole
member, its officers and directors, and any officers of the company, from and against all losses,
claims, costs, liabilities and damages incurred by such person by reason of any act performed or
omitted to be performed by such person in connection with the business of the company, including
attorneys fees incurred by such person in connection with the defense of any action based on any
such act or omission; provided, however, no such person shall be indemnified from any liability for
fraud, bad faith, willful misconduct or gross negligence.
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There is no provision for indemnification or insurance in the certificate of formation or the
operating agreement of Republic Services of Virginia, LLC.
Washington Registrants:
(a) Rabanco Recycling, Inc., Rabanco, Ltd. and WJR Environmental, Inc. are incorporated under the
laws of Washington.
Sections 23B.08.500 et seq. of the Washington Business Corporation Act authorize a court to
award, or a corporations board of directors to grant, indemnity to an officer, director, employee
or agent of the corporation under certain circumstances and subject to certain limitations.
Section 23B.08.320 of the Washington Business Corporation Act provides that the articles of
incorporation of a corporation may eliminate or limit the personal liability of a director to the
corporation or its shareholders, subject to certain limitations. Sections 23B.08.420(4) and
23B.08.300(4) of the Washington Business Corporation Act provide that a director or officer of a
corporation shall not be liable for any action taken as a director or officer or any failure to
take any action if such director or officer performed the duties of his or her office (i) in good
faith, (ii) with the care an ordinarily prudent person in a like position would exercise under
similar circumstances and (iii) in a manner he or she reasonably believes to be in the best
interests of the corporation.
The articles of incorporation of each of Rabanco Recycling, Inc. and Rabanco, Ltd. provide
that a director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the Washington Business
Corporation Act.
The articles of incorporation of WJR Environmental, Inc. provide that a director of the
corporation shall not be personally liable to the corporation or its shareholders for monetary
damages for conduct as a director, except for (i) acts or omissions involving intentional
misconduct by the director or a knowing violation of law by the director, (ii) conduct violating
23B.08.310 of the Washington Business Corporation Act relating to certain distributions by the
corporation or (iii) any transaction from which the director will personally receive a benefit in
money, property or services to which the director is not legally entitled.
The bylaws of each of the Washington corporation registrants provide that the corporation
shall, to the fullest extent permitted by the law, indemnify and advance expenses to each person to
whom indemnification and advancement of expenses may be offered under the law. The corporation
shall have the power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of another entity or other
enterprise against any liability asserted against or incurred by such person in such capacity or
arising out of such persons status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of Washington law.
(b) Rabanco Companies is organized as a general partnership under the laws of Washington.
Section 25.05.150(3) of the Washington Revised Uniform Partnership Act authorizes a general
partnership to indemnify partners under certain circumstances and subject to certain limitations.
There is no provision for indemnification or insurance in the partnership agreement of Rabanco
Companies.
West Virginia Registrant: Sandy Hollow Landfill Corp. is organized as a corporation under the laws
of West Virginia.
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Part 5 of Article 8 of the West Virginia Business Corporation Act authorizes a court to award,
or a corporations board of directors to grant, indemnity to officers and directors of the
corporation under certain circumstances and subject to certain limitations.
Section 31D-8-831(a) of the West Virginia Business Corporation Act provides that a director of
a corporation shall not be liable to the corporation or its shareholders for any decision to take
or not to take action or any failure to take any action as a director unless the party asserting
liability establishes that the articles of incorporation and other law do not preclude liability
and the challenged conduct consisted of or was the result of (i) action not in good faith, (ii) a
decision (1) which the director did not reasonably believe to be in the best interests of the
corporation or (2) as to which the director was not informed to an extent the director reasonably
believed appropriate in the circumstances, (iii) a lack of objectivity or independence, (iv) a
sustained failure of the director to devote attention to ongoing oversight of the business and
affairs of the corporation or (v) receipt of a financial benefit to which the director was not
entitled.
The bylaws of Sandy Hollow Landfill Corp. provide that the corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another
entity or other enterprise, against expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in connection with such
action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another entity or other enterprise against expenses (including
attorneys fees) actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
The bylaws of Sandy Hollow Landfill Corp. also provide that any indemnification (unless
ordered by a court) shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct. Such determination shall be made
(i) by the board of directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the corporation
according to the bylaws of the corporation. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another entity or
other enterprise against any liability asserted against or incurred by
II-67
such person in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power or the obligation to indemnify him or her against such liability
under the bylaws of the corporation.
Item 21. Exhibits and Financial Statement Schedules
A list of exhibits filed with this registration statement is contained in the index to
exhibits, which is incorporated by reference.
Item 22. Undertakings
Each of the undersigned co-registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the Calculation of Registration
Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(6) To respond to requests for information that is incorporated by reference into the
prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt
of such request, and to send the incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent to the effective date of
the registration statement through the date of responding to the request.
(7) To supply by means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and included in the
registration statement when it became effective.
II-68
(8) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-69
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Republic Services, Inc. has duly
caused this registration statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona on May 6, 2010.
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REPUBLIC SERVICES, INC.
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By: |
/s/ James E. OConnor *
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James E. OConnor |
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Chairman of the Board and Chief Executive Officer
(principal executive officer) |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ James E. OConnor *
James E. OConnor
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Chairman of the Board and Chief Executive Officer
(principal executive officer) |
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/s/ Tod C. Holmes
Tod C. Holmes
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Executive Vice President and Chief Financial Officer
(principal financial officer) |
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/s/ Charles F. Serianni *
Charles F. Serianni
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Senior Vice President and Chief Accounting Officer
(principal accounting officer) |
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/s/ John W. Croghan *
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Director |
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John W. Croghan |
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/s/ James W. Crownover *
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Director |
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James W. Crownover |
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/s/ William J. Flynn *
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Director |
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William J. Flynn |
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/s/ David I. Foley *
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Director |
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David I. Foley |
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II-70
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Signature |
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Title |
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/s/ Michael Larson *
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Director |
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Michael Larson |
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/s/ Nolan Lehmann *
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Director |
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Nolan Lehmann |
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/s/ W. Lee Nutter *
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Director |
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W. Lee Nutter |
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/s/ Ramon A. Rodriguez *
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Director |
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Ramon A. Rodriguez |
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/s/ Allan C. Sorensen *
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Director |
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Allan C. Sorensen |
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/s/ John M. Trani *
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Director |
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John M. Trani |
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/s/ Michael W. Wickham *
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Director |
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Michael W. Wickham |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-71
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule A hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule A hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Donald W. Slager *
Donald W. Slager
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President and Director
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance, Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-72
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule B hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule B hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Kevin Walbridge *
Kevin Walbridge
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance, Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Donald W. Slager *
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Director |
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Donald W. Slager |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-73
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule C hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule C hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Jeff D. Andrews *
Jeff D. Andrews
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance, Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Donald W. Slager *
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Director |
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Donald W. Slager |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-74
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule D hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule D hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Ronald Krall *
Ronald Krall
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance, Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Donald W. Slager *
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Director |
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Donald W. Slager |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-75
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule E hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule E hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III * |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Christopher Synek *
Christopher Synek
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance, Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Donald W. Slager *
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Director |
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Donald W. Slager |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
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Tod C. Holmes |
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Attorney-in-Fact |
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II-76
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule F hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule F hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Donald W. Slager *
Donald W. Slager
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-77
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule G hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule G hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Treasurer |
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|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Jeff D. Andrews *
Jeff D. Andrews
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Treasurer and Director
(principal financial officer and principal
accounting officer) |
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/s/ Donald W. Slager *
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Director |
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Donald W. Slager |
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/s/ Charles F. Serianni *
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Director |
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Charles F. Serianni |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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|
II-78
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule H hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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|
On behalf of each Subsidiary Guarantor listed on
Schedule H hereto
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By: |
/s/ Edward A. Lang, III *
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|
Edward A. Lang, III |
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Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Ronald Krall *
Ronald Krall
|
|
President
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer and Director
(principal financial officer and principal
accounting officer) |
|
|
|
/s/ Donald W. Slager *
|
|
Director |
|
|
|
Donald W. Slager |
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director |
|
|
|
Charles F. Serianni |
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-79
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule I hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on
Schedule I hereto
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Kevin Walbridge *
Kevin Walbridge
|
|
President
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer and Director
(principal financial officer and principal
accounting officer) |
|
|
|
/s/ Donald W. Slager *
|
|
Director |
|
|
|
Donald W. Slager |
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director |
|
|
|
Charles F. Serianni |
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-80
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary
Guarantors listed on Schedule J hereto has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona
on May 6, 2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule J
hereto |
|
|
By: |
/s/ Edward A. Lang, III*
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Christopher Synek *
|
|
President |
Christopher Synek
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer and Director |
Edward A. Lang, III
|
|
(principal
financial officer and principal accounting officer) |
|
|
|
/s/ Donald W. Slager *
|
|
Director |
Donald W. Slager
|
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-81
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule K hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule K
hereto |
|
|
By: |
/s/ James E. OConnor *
|
|
|
|
James E. OConnor |
|
|
|
President and Chief Executive Officer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ James E. OConnor *
|
|
President, Chief Executive Officer and Director |
James E. OConnor
|
|
(principal
executive officer) |
|
|
|
/s/ Tod C. Holmes
|
|
Chief Financial Officer and Director |
Tod C. Holmes
|
|
(principal
financial officer) |
|
|
|
/s/ Charles F. Serianni *
|
|
Chief Accounting Officer |
Charles F. Serianni
|
|
(principal
accounting officer) |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-82
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule L hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule L
hereto |
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Thomas E. Miller *
|
|
President and Director |
Thomas E. Miller
|
|
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal
financial officer and principal accounting officer) |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-83
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule M hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule M
hereto |
|
|
By: |
/s/ Roger A. Groen Jr. *
|
|
|
|
Roger A. Groen Jr. |
|
|
|
President |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Roger A. Groen Jr. *
|
|
President and Director |
Roger A. Groen Jr.
|
|
(principal
executive officer, principal financial officer
and principal accounting officer) |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-84
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule N hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule N
hereto |
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Ronald Krall *
|
|
President |
Ronald Krall
|
|
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director |
Edward A. Lang, III
|
|
(principal
financial officer and principal accounting officer) |
|
|
|
/s/ Charles F. Serianni *
|
|
Director |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-85
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule O hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule O
hereto |
|
|
By: |
Allied Waste Landfill Holdings, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
|
|
President and Director of Allied Waste Landfill |
Donald W. Slager
|
|
Holdings,
Inc. |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director of |
Edward A. Lang, III
|
|
Allied
Waste Landfill Holdings, Inc. |
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Allied Waste Landfill Holdings, Inc. |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-86
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule P hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule P
hereto |
|
|
By: |
Allied Waste Landfill Holdings, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
By: |
Allied Waste North America, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ James E. OConnor *
|
|
|
|
James E. OConnor |
|
|
|
President and Chief Executive Officer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
|
|
President and Director of Allied Waste Landfill |
Donald W. Slager
|
|
Holdings,
Inc. |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director of |
Edward A. Lang, III
|
|
Allied Waste Landfill Holdings, Inc. |
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Allied Waste Landfill Holdings, Inc. and |
Charles F. Serianni
|
|
Chief
Accounting Officer of Allied Waste North America, Inc. |
|
|
|
/s/ James E. OConnor *
|
|
President, Chief Executive Officer and Director of |
James E. OConnor
|
|
Allied
Waste North America, Inc. |
II-87
|
|
|
Signature |
|
Title |
|
|
|
/s/ Tod C. Holmes
|
|
Chief Financial Officer and Director of Allied Waste |
Tod C. Holmes
|
|
North
America, Inc. |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-88
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule Q hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule Q
hereto |
|
|
By: |
Allied Waste North America, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ James E. OConnor *
|
|
|
|
James E. OConnor |
|
|
|
President and Chief Executive Officer |
|
|
|
|
|
|
By: |
Browning-Ferris Industries of Tennessee, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ James E. OConnor *
|
|
President, Chief Executive Officer and Director of |
James E. OConnor
|
|
Allied
Waste North America, Inc. |
|
|
|
/s/ Tod C. Holmes
|
|
Chief Financial Officer and Director of Allied Waste |
Tod C. Holmes
|
|
North America, Inc. |
|
|
|
/s/ Charles F. Serianni *
|
|
Chief Accounting Officer of Allied Waste North |
Charles F. Serianni
|
|
America,
Inc. and Director of Browning-Ferris Industries of Tennessee, Inc. |
|
|
|
/s/ Donald W. Slager *
|
|
President and Director of Browning-Ferris Industries of |
Donald W. Slager
|
|
Tennessee,
Inc. |
II-89
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director of |
Edward A. Lang, III
|
|
Browning-Ferris
Industries of Tennessee, Inc. |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-90
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule R hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule R
hereto |
|
|
By: |
Republic Waste Services of Texas GP, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Christopher Synek *
|
|
President of Republic Waste Services of Texas GP, Inc. |
Christopher Synek
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer and Director of Republic Waste Services of |
Edward A. Lang, III
|
|
Texas
GP, Inc. |
|
|
|
/s/ Donald W. Slager *
|
|
Director of Republic Waste Services of Texas GP, Inc. |
Donald W. Slager
|
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Republic Waste Services of Texas GP, Inc. |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-91
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule S hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule S
hereto |
|
|
By: |
BFI Energy Systems of Southeastern Connecticut, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
|
|
President and Director of BFI Energy Systems of |
Donald W. Slager
|
|
Southeastern
Connecticut, Inc. |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director of BFI |
Edward A. Lang, III
|
|
Energy
Systems of Southeastern Connecticut, Inc. |
|
|
|
/s/ Charles F. Serianni *
|
|
Director of BFI Energy Systems of Southeastern |
Charles F. Serianni
|
|
Connecticut,
Inc. |
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-92
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule T hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule T
hereto |
|
|
By: |
Republic Services, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ James E. OConnor *
|
|
|
|
James E. OConnor |
|
|
|
Chairman of the Board and Chief Executive Officer |
|
|
|
|
|
|
By: |
Zakaroff Services, as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ James E. OConnor *
|
|
Chairman of the Board and Chief Executive Officer of |
James E. OConnor
|
|
Republic
Services, Inc. |
|
|
|
/s/ Tod C. Holmes
|
|
Executive Vice President and Chief Financial Officer of |
Tod C. Holmes
|
|
Republic
Services, Inc. |
|
|
|
/s/ Charles F. Serianni *
|
|
Senior Vice President and Chief Accounting Officer of |
Charles F. Serianni
|
|
Republic
Services, Inc. and Director of Zakaroff Services |
|
|
|
/s/ John W. Croghan *
|
|
Director of Republic Services, Inc. |
John W. Croghan
|
|
|
|
|
|
/s/ James W. Crownover *
|
|
Director of Republic Services, Inc. |
James W. Crownover
|
|
|
II-93
|
|
|
Signature |
|
Title |
|
|
|
/s/ William J. Flynn *
|
|
Director of Republic Services, Inc. |
William J. Flynn
|
|
|
|
|
|
/s/ David I. Foley *
|
|
Director of Republic Services, Inc. |
David I. Foley
|
|
|
|
|
|
/s/ Michael Larson *
|
|
Director of Republic Services, Inc. |
Michael Larson
|
|
|
|
|
|
/s/ Nolan Lehmann *
|
|
Director of Republic Services, Inc. |
Nolan Lehmann
|
|
|
|
|
|
/s/ W. Lee Nutter *
|
|
Director of Republic Services, Inc. |
W. Lee Nutter
|
|
|
|
|
|
/s/ Ramon A. Rodriguez *
|
|
Director of Republic Services, Inc. |
Ramon A. Rodriguez
|
|
|
|
|
|
/s/ Allan C. Sorensen *
|
|
Director of Republic Services, Inc. |
Allan C. Sorensen
|
|
|
|
|
|
/s/ John M. Trani *
|
|
Director of Republic Services, Inc. |
John M. Trani
|
|
|
|
|
|
/s/ Michael W. Wickham *
|
|
Director of Republic Services, Inc. |
Michael W. Wickham
|
|
|
|
|
|
/s/ Donald W. Slager *
|
|
President and Director of Zakaroff Services |
Donald W. Slager
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer and Director of Zakaroff Services |
Edward A. Lang, III
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-94
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule U hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule U
hereto |
|
|
By: |
Rabanco Recycling, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
By: |
Rabanco, Ltd., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Jeff D. Andrews *
|
|
President of Rabanco Recycling, Inc. and Rabanco, Ltd. |
Jeff D. Andrews
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance, Treasurer and Director of |
Edward A. Lang, III
|
|
Rabanco
Recycling, Inc. and Rabanco, Ltd. |
|
|
|
/s/ Donald W. Slager *
|
|
Director of Rabanco Recycling, Inc. and Rabanco, Ltd. |
Donald W. Slager
|
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Rabanco Recycling, Inc. and Rabanco, Ltd. |
Charles F. Serianni
|
|
|
II-95
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-96
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule V hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule V
hereto |
|
|
By: |
Republic Silver State Disposal, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Jeff D. Andrews *
|
|
President of Republic Silver State Disposal, Inc. |
Jeff D. Andrews
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer and Director of Republic Silver State |
Edward A. Lang, III
|
|
Disposal, Inc. |
|
|
|
/s/ Donald W. Slager *
|
|
Director of Republic Silver State Disposal, Inc. |
Donald W. Slager
|
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Republic Silver State Disposal, Inc. |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-97
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule W hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule W
hereto |
|
|
By: |
Republic Services of Florida GP, Inc., as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Christopher Synek *
|
|
President of Republic Services of Florida GP, Inc. |
Christopher Synek
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer and Director of Republic Services of Florida |
Edward A. Lang, III
|
|
GP, Inc. |
|
|
|
/s/ Donald W. Slager *
|
|
Director of Republic Services of Florida GP, Inc. |
Donald W. Slager
|
|
|
|
|
|
/s/ Charles F. Serianni *
|
|
Director of Republic Services of Florida GP, Inc. |
Charles F. Serianni
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
|
|
Attorney-in-Fact |
|
|
II-98
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule X hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule X
hereto |
|
|
By: |
Republic Services of Georgia GP, LLC, as General Partner
|
|
|
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Christopher Synek *
|
|
President of Republic Services of Georgia GP, LLC |
Christopher Synek
|
|
|
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer of Republic Services of Georgia GP, LLC |
Edward A. Lang, III
|
|
|
|
|
|
Republic Services, Inc.
|
|
Managing Member of Republic Services of Georgia
GP, LLC |
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
Name:
|
|
James E. OConnor
|
|
|
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
Attorney-in-Fact |
|
|
II-99
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary
Guarantors listed on Schedule Y hereto has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona
on May 6, 2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule Y hereto |
|
|
|
|
|
|
|
By: Republic Services, Inc., as General Partner |
|
|
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
|
|
|
|
|
|
James E. OConnor |
|
|
|
|
|
|
|
|
|
Chairman of the Board and Chief Executive Officer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ James E. OConnor *
James E. OConnor
|
|
Chairman of the Board and Chief Executive
Officer of Republic Services, Inc. |
|
|
|
/s/ Tod C. Holmes
Tod C. Holmes
|
|
Executive Vice President and Chief Financial
Officer of Republic Services, Inc. |
|
|
|
/s/ Charles F. Serianni *
Charles F. Serianni
|
|
Senior Vice President and Chief Accounting
Officer of Republic Services, Inc. |
|
|
|
/s/ John W. Croghan *
John W. Croghan
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ James W. Crownover *
James W. Crownover
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ William J. Flynn *
William J. Flynn
|
|
Director of Republic Services, Inc. |
II-100
|
|
|
Signature |
|
Title |
|
|
|
/s/ David I. Foley *
David I. Foley
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ Michael Larson *
Michael Larson
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ Nolan Lehmann *
Nolan Lehmann
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ W. Lee Nutter *
W. Lee Nutter
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ Ramon A. Rodriguez *
Ramon A. Rodriguez
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ Allan C. Sorensen *
Allan C. Sorensen
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ John M. Trani *
John M. Trani
|
|
Director of Republic Services, Inc. |
|
|
|
/s/ Michael W. Wickham *
Michael W. Wickham
|
|
Director of Republic Services, Inc. |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-101
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule Z hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule Z hereto |
|
|
|
|
|
|
|
By: Republic Services of Wisconsin GP, LLC, as General Partner |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Kevin Walbridge *
Kevin Walbridge
|
|
President of Republic Services of Wisconsin GP, LLC |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer of Republic Services of Wisconsin GP, LLC |
|
Republic Services, Inc.
|
|
Managing Member of Republic Services of Wisconsin GP, LLC |
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
Name:
|
|
James E. OConnor |
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-102
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule AA hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule AA hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer
(principal
financial officer
and principal accounting
officer) |
|
|
|
Republic Services of Indiana, Limited Partnership
|
|
Managing Member |
|
|
|
By:
|
|
Republic Services, Inc., as General Partner |
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
Name:
|
|
James E. OConnor |
Title:
|
|
Chairman of the Board and
Chief Executive Officer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-103
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule BB hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule BB hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Allied Waste North America, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-104
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule CC hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule CC hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Allied Waste Landfill Holdings, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-105
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule DD hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule DD hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Kevin Walbridge *
Kevin Walbridge
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Browning-Ferris Industries, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-106
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule EE hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule EE hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Ronald Krall *
Ronald Krall
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Browning-Ferris Industries, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-107
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule FF hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule FF hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Ronald Krall *
Ronald Krall
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Allied Waste North America, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-108
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule GG hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule GG hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Browning-Ferris Industries, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-109
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule HH hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule HH hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Jeff D. Andrews *
Jeff D. Andrews
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Browning-Ferris Industries, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-110
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule II hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule II hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Jeff D. Andrews *
Jeff D. Andrews
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Allied Waste North America, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-111
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule JJ hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on Schedule JJ hereto |
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By:
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/s/ Edward A. Lang, III * |
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Christopher Synek *
Christopher Synek
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President
(principal
executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
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Browning-Ferris Industries, LLC
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Managing Member |
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By:
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/s/ Edward A. Lang, III * |
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Name:
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Edward A. Lang, III |
Title:
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Vice President Finance and Treasurer |
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*By:
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/s/ Tod C. Holmes |
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Tod C. Holmes |
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Attorney-in-Fact |
II-112
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule KK hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on Schedule KK hereto |
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By:
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/s/ Edward A. Lang, III * |
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Kevin Walbridge *
Kevin Walbridge
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President
(principal
executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
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Allied Waste North America, Inc.
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Managing Member |
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By:
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/s/ Edward A. Lang, III * |
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Name:
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Edward A. Lang, III |
Title:
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Vice President Finance and Treasurer |
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*By:
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/s/ Tod C. Holmes |
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Tod C. Holmes |
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Attorney-in-Fact |
II-113
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule LL hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on Schedule LL hereto |
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By:
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/s/ Edward A. Lang, III * |
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Edward A. Lang, III |
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Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Donald W. Slager *
Donald W. Slager
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President
(principal
executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Treasurer
(principal
financial officer
and principal accounting
officer) |
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Republic Services Aviation, Inc.
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Managing Member |
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By:
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/s/ Edward A. Lang, III * |
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Name:
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Edward A. Lang, III |
Title:
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Treasurer |
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*By:
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/s/ Tod C. Holmes |
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Tod C. Holmes |
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Attorney-in-Fact |
II-114
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule MM hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on Schedule MM hereto |
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By:
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/s/ Edward A. Lang, III * |
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Christopher Synek *
Christopher Synek
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President
(principal
executive officer) |
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|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
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Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
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Allied Waste North America, Inc.
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Managing Member |
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By:
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/s/ Edward A. Lang, III * |
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Name:
|
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Edward A. Lang, III |
Title:
|
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Vice President Finance and Treasurer |
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*By:
|
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/s/ Tod C. Holmes |
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|
Tod C. Holmes |
|
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Attorney-in-Fact |
II-115
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule NN hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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On behalf of each Subsidiary Guarantor listed on Schedule NN hereto |
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By:
|
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/s/ Edward A. Lang, III * |
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|
Edward A. Lang, III |
|
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|
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|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
|
Title |
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|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Allied Green Power, Inc.
|
|
Managing Member |
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By:
|
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/s/ Edward A. Lang, III * |
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|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
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|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-116
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule OO hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
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|
On behalf of each Subsidiary Guarantor listed on Schedule OO hereto |
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By:
|
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/s/ Edward A. Lang, III * |
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|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
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|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
BFI Waste Systems of North America, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-117
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule PP hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
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|
|
On behalf of each Subsidiary Guarantor listed on Schedule PP hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Kevin Walbridge *
Kevin Walbridge
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Bridgeton Landfill, LLC
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-118
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule QQ hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
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|
|
On behalf of each Subsidiary Guarantor listed on Schedule QQ hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Ronald Krall *
Ronald Krall
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Vice President Finance and Treasurer
(principal
financial officer and
principal accounting officer) |
|
|
|
Browning-Ferris Industries of Ohio, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-119
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule RR hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule RR hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Christopher Synek *
Christopher Synek
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer
(principal
financial officer
and principal accounting
officer) |
|
|
|
Republic Services of Georgia, Limited Partnership
|
|
Managing Member |
|
|
|
By:
|
|
Republic Services of Georgia GP, LLC, as General Partner |
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
Name:
|
|
Edward A. Lang, III |
Title:
|
|
Treasurer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-120
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule SS hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule SS hereto |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Jeff D. Andrews *
Jeff D. Andrews
|
|
President
(principal
executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer
(principal
financial officer
and principal accounting
officer) |
|
|
|
Republic Services, Inc.
|
|
Managing Member |
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
Name:
|
|
James E. OConnor |
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
Tod C. Holmes |
|
|
Attorney-in-Fact |
II-121
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary
Guarantors listed on Schedule TT hereto has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona
on May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule TT
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Ronald Krall
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
James E. OConnor |
|
|
|
|
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-122
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule UU hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule UU
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Ronald Krall
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
County Disposal (Ohio), Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-123
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule VV hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule VV
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Kevin Walbridge
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Liberty Waste Services of Illinois, L.L.C. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-124
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule WW hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule WW
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Jeff D. Andrews
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
ECDC Holdings, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-125
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule XX hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule XX
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Liberty Waste Services Limited, L.L.C. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-126
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule YY hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule YY
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Frontier Waste Services, L.P. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
Allied Waste Landfill Holdings, Inc., as General
Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-127
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule ZZ hereto has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on May 6,
2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule ZZ
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Jeff D. Andrews
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Allied Waste Services of North America, LLC |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-128
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule AAA hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule AAA
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
American Disposal Services of Illinois, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-129
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule BBB hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule BBB
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Kevin Walbridge
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Liberty Waste Services Limited, L.L.C. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-130
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule CCC hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule CCC
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Kevin Walbridge
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Allied Waste Systems, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-131
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule DDD hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule DDD
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services of Ohio Hauling, LLC |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-132
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule EEE hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule EEE
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
James E. OConnor |
|
|
|
|
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-133
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule FFF hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule FFF
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Jeff D. Andrews
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services Holding Company, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-134
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule GGG hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule GGG
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Jeff D. Andrews
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services of California Holding
Company, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-135
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule HHH hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule HHH hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Christopher Synek
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
James E. OConnor |
|
|
|
|
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-136
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule III hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on
Schedule III hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Kevin Walbridge
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ James E. OConnor * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
James E. OConnor |
|
|
|
|
Title:
|
|
Chairman of the Board
and Chief Executive
Officer |
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|
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|
|
|
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|
*By:
|
|
/s/ Tod C. Holmes |
|
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|
|
|
|
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|
|
|
|
|
Tod C. Holmes |
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|
|
|
|
Attorney-in-Fact |
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|
|
|
II-137
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule JJJ hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule JJJ
hereto |
|
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|
|
|
|
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|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
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|
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|
|
|
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|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Kevin Walbridge
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
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|
|
Republic Services of Michigan Holding
Company, Inc. |
|
|
|
Managing Member |
|
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|
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|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
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|
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|
|
|
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|
|
Name:
|
|
Edward A. Lang, III |
|
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|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
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|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
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|
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|
|
|
Tod C. Holmes |
|
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|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-138
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule KKK hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule KKK
hereto |
|
|
|
|
|
|
|
|
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|
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By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
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|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Ronald Krall
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Continental Waste Industries, L.L.C. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-139
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule LLL hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule LLL
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services Holding Company, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-140
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule MMM hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule MMM
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Ronald Krall
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Services Holding Company, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-141
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule NNN hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule NNN
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Browning-Ferris Industries of Tennessee, Inc. |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-142
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule OOO hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule OOO
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Donald W. Slager
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Treasurer |
Edward A. Lang, III
|
|
(principal financial officer
and principal accounting
officer) |
|
|
|
|
|
|
|
Republic Waste, Limited Partnership |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
Republic Waste Services of Texas GP,
Inc., as General Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-143
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule PPP hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
|
|
|
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on Schedule PPP
hereto |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward A. Lang, III |
|
|
|
|
|
|
|
|
|
|
|
|
|
Vice President Finance and Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
|
|
President |
Christopher Synek
|
|
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
|
|
Vice President Finance and Treasurer |
Edward A. Lang, III
|
|
(principal financial officer and
principal accounting officer) |
|
|
|
|
|
|
|
Brenham Total Roll-Offs, LP |
|
|
|
Managing Member |
|
|
|
|
|
|
|
By:
|
|
Allied Waste Landfill Holdings, Inc., as
General Partner |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Edward A. Lang, III |
|
|
|
|
Title:
|
|
Vice President Finance and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Tod C. Holmes |
|
|
|
|
|
|
Attorney-in-Fact |
|
|
|
|
II-144
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary
Guarantors listed on Schedule QQQ hereto has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of
Arizona on May 6, 2010.
|
|
|
|
|
|
On behalf of each Subsidiary Guarantor listed on
Schedule QQQ hereto
|
|
|
By: |
/s/ Edward A. Lang, III *
|
|
|
|
Edward A. Lang, III |
|
|
|
Treasurer |
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
|
|
|
Signature |
|
Title |
|
|
|
/s/ Donald W. Slager *
Donald W. Slager
|
|
President
(principal executive officer) |
|
|
|
/s/ Edward A. Lang, III *
Edward A. Lang, III
|
|
Treasurer
(principal financial officer and principal accounting officer) |
|
|
|
Central Virginia Properties, LLC |
|
Managing Member |
|
|
|
|
|
By:
|
|
/s/ Edward A. Lang, III * |
|
|
Name:
|
|
Edward A. Lang, III
|
|
|
Title:
|
|
Treasurer |
|
|
|
|
|
|
|
*By:
|
|
/s/ Tod C. Holmes |
|
|
|
|
Tod C. Holmes
|
|
|
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Attorney-in-Fact |
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II-145
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule RRR hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule RRR hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Vice President Finance and Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Christopher Synek *
Christopher Synek
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Vice President Finance and Treasurer
(principal financial officer and principal accounting officer) |
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BFI Waste Systems of North America, LLC |
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Managing Member |
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By:
Name:
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Title:
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Vice President Finance and Treasurer |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-146
Pursuant to the requirements of the Securities Act of 1933, each of the Subsidiary Guarantors
listed on Schedule SSS hereto has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona on
May 6, 2010.
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On behalf of each Subsidiary Guarantor listed on
Schedule SSS hereto
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By: |
/s/ Edward A. Lang, III *
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Edward A. Lang, III |
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Treasurer |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes and Edward A. Lang, III and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Form S-4 registration statement, and to file the
same, with all exhibits thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on May 6, 2010.
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Signature |
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Title |
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/s/ Kevin Walbridge *
Kevin Walbridge
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President
(principal executive officer) |
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/s/ Edward A. Lang, III *
Edward A. Lang, III
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Treasurer
(principal financial officer and principal accounting officer) |
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Republic Services of Indiana, Limited Partnership |
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Managing Member |
By: Republic Services, Inc., as General Partner |
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By:
Name:
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/s/ James E. OConnor *
James E. OConnor
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Title:
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Chairman of the Board and Chief Executive Officer |
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*By:
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/s/ Tod C. Holmes
Tod C. Holmes
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Attorney-in-Fact |
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II-147
SCHEDULE A
SUBSIDIARY GUARANTORS
Action Disposal, Inc.
Ada County Development Company, Inc.
ADS, Inc.
ADS of Illinois, Inc.
Alabama Recycling Services, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Enviroengineering, Inc.
Allied Green Power, Inc.
Allied Nova Scotia, Inc.
Allied Waste Alabama, Inc.
Allied Waste Company, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Holdings (Canada) Ltd.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries (Southwest), Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste of California, Inc.
Allied Waste of Long Island, Inc.
Allied Waste of New Jersey, Inc.
Allied Waste Rural Sanitation, Inc.
Allied Waste Services of Colorado, Inc.
Allied Waste Systems Holdings, Inc.
Allied Waste Systems, Inc.
Allied Waste Transportation, Inc.
American Disposal Services of New Jersey, Inc.
American Disposal Services, Inc.
American Disposal Transfer Services of Illinois, Inc.
American Materials Recycling Corp.
American Sanitation, Inc.
American Transfer Company, Inc.
Area Disposal, Inc.
Atlantic Waste Holding Company, Inc.
Attwoods of North America, Inc.
Autoshred, Inc.
AWIN Leasing Company, Inc.
AWIN Management, Inc.
BBCO, Inc.
BFI Atlantic, Inc.
BFI Energy Systems of Albany, Inc.
BFI Energy Systems of Delaware County, Inc.
BFI Energy Systems of Essex County, Inc.
BFI Energy Systems of Hempstead, Inc.
BFI Energy Systems of Niagara II, Inc.
BFI Energy Systems of Niagara, Inc.
BFI Energy Systems of SEMASS, Inc.
II-148
BFI Energy Systems of Southeastern Connecticut, Inc.
BFI International, Inc.
BFI REF-FUEL, INC.
BFI Trans River (GP), Inc.
Borrow Pit Corp.
Browning-Ferris Financial Services, Inc.
Browning-Ferris Industries Chemical Services, Inc.
Browning-Ferris Industries of Florida, Inc.
Browning-Ferris Industries of Illinois, Inc.
Browning-Ferris Industries of New Jersey, Inc.
Browning-Ferris Industries of New York, Inc.
Browning-Ferris Industries of Tennessee, Inc.
Browning-Ferris Services, Inc.
Bunting Trash Service, Inc.
CECOS International, Inc.
Charter Evaporation Resource Recovery Systems
County Disposal, Inc.
Delta Dade Recycling Corp.
Delta Paper Stock, Co.
Delta Site Development Corp.
Delta Waste Corp.
Eagle Industries Leasing, Inc.
ECDC Environmental of Humboldt County, Inc.
ECDC Holdings, Inc.
Evergreen Scavenger Service, Inc.
G. Van Dyken Disposal Inc.
General Refuse Rolloff Corp.
Georgia Recycling Services, Inc.
Golden Waste Disposal, Inc.
Great Lakes Disposal Service, Inc.
Gulfcoast Waste Service, Inc.
Illinois Recycling Services, Inc.
Ingrum Waste Disposal, Inc.
Island Waste Services Ltd.
Jetter Disposal, Inc.
La Cañada Disposal Company, Inc.
Liberty Waste Holdings, Inc.
Louis Pinto & Son, Inc., Sanitation Contractors
Lucas County Land Development, Inc.
Manumit of Florida, Inc.
Midway Development Company, Inc.
Mississippi Waste Paper Company
Mountain Home Disposal, Inc.
NationsWaste Catawba Regional Landfill, Inc.
NationsWaste, Inc.
Ncorp, Inc.
Pinal County Landfill Corp.
Portable Storage Co.
Preble County Landfill, Inc.
Price & Sons Recycling Company
II-149
R.C. Miller Enterprises, Inc.
Resource Recovery, Inc.
Risk Services, Inc.
Rock Road Industries, Inc.
Ross Bros. Waste & Recycling Co.
Royal Holdings, Inc.
S & S Recycling, Inc.
San Marcos NCRRF, Inc.
Sanitary Disposal Service, Inc.
Shred All Recycling Systems, Inc.
Standard Disposal Services, Inc.
Standard Waste, Inc.
Suburban Transfer, Inc.
Summit Waste Systems, Inc.
Tates Transfer Systems, Inc.
Taylor Ridge Landfill, Inc.
Tennessee Union County Landfill, Inc.
The Ecology Group, Inc.
Total Solid Waste Recyclers, Inc.
Tri-State Recycling Services, Inc.
Tri-State Refuse Corporation
Vining Disposal Service, Inc.
Waste Control Systems, Inc.
Wastehaul, Inc.
Wayne County Landfill IL, Inc.
SCHEDULE B
SUBSIDIARY GUARANTORS
Adrian Landfill, Inc.
Allied Waste Industries of Illinois, Inc.
Allied Waste Services of Stillwater, Inc.
American Disposal Services of Kansas, Inc.
American Disposal Services of Illinois, Inc.
Belleville Landfill, Inc.
Bond County Landfill, Inc.
Brickyard Disposal & Recycling, Inc.
CC Landfill, Inc.
Central Sanitary Landfill, Inc.
Citizens Disposal, Inc.
City-Star Services, Inc.
Clarkston Disposal, Inc.
Dempsey Waste Systems II, Inc.
DTC Management, Inc.
East Chicago Compost Facility, Inc.
Environmental Development Corp. (DE)
Environmental Reclamation Company
Environtech, Inc.
Fred Barbara Trucking Co., Inc.
Harlands Sanitary Landfill, Inc.
II-150
Illinois Landfill, Inc.
Illinois Valley Recycling, Inc.
Kankakee Quarry, Inc.
LandComp Corporation
Lee County Landfill, Inc.
Loop Recycling, Inc.
Loop Transfer, Incorporated
Northlake Transfer, Inc.
Oakland Heights Development, Inc.
Oscars Collection System of Fremont, Inc.
Ottawa County Landfill, Inc.
Pittsburg County Landfill, Inc.
RCS, Inc.
Roxana Landfill, Inc.
Saline County Landfill, Inc.
Sangamon Valley Landfill, Inc.
Sauk Trail Development, Inc.
Standard Environmental Services, Inc.
Streator Area Landfill, Inc.
Suburban Warehouse, Inc.
Sunset Disposal, Inc.
Thomas Disposal Service, Inc.
Upper Rock Island County Landfill, Inc.
Williams County Landfill Inc.
Woodlake Sanitary Service, Inc.
SCHEDULE C
SUBSIDIARY GUARANTORS
Agri-Tech, Inc. of Oregon
Albany-Lebanon Sanitation, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Services of Page, Inc.
Allied Waste Transfer Services of Utah, Inc.
Apache Junction Landfill Corporation
Bio-Med of Oregon, Inc.
Borrego Landfill, Inc.
Browning-Ferris Industries of California, Inc.
Capitol Recycling and Disposal, Inc.
Central Arizona Transfer, Inc.
Cocopah Landfill, Inc.
Copper Mountain Landfill, Inc.
Corvallis Disposal Co.
Dallas Disposal Co.
Delta Container Corporation
Denver RL North, Inc.
Elder Creek Transfer & Recovery, Inc.
Forward, Inc.
Grants Pass Sanitation, Inc.
Imperial Landfill, Inc.
II-151
Independent Trucking Company
International Disposal Corp. of California
Keller Canyon Landfill Company
Keller Drop Box, Inc.
Lathrop Sunrise Sanitation Corporation
McInnis Waste Systems, Inc.
Mesa Disposal, Inc.
Otay Landfill, Inc.
Palomar Transfer Station, Inc.
Peltier Real Estate Company
Rabanco Recycling, Inc.
Rabanco, Ltd.
Ramona Landfill, Inc.
Rossman Sanitary Service, Inc.
Source Recycling, Inc.
Sunrise Sanitation Service, Inc.
Sunset Disposal Service, Inc.
Sycamore Landfill, Inc.
United Disposal Service, Inc.
Valley Landfills, Inc.
Wasatch Regional Landfill, Inc.
WDTR, Inc.
Willamette Resources, Inc.
WJR Environmental, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
American Disposal Services of Missouri, Inc.
American Disposal Services of West Virginia, Inc.
Automated Modular Systems, Inc.
BFI Transfer Systems of New Jersey, Inc.
Browning-Ferris, Inc.
Browning-Ferris Industries, Inc.
Browning-Ferris Industries of Ohio, Inc.
Celina Landfill, Inc.
Cherokee Run Landfill, Inc.
County Disposal (Ohio), Inc.
County Landfill, Inc.
F. P. McNamara Rubbish Removal, Inc.
Lake Norman Landfill, Inc.
Newco Waste Systems of New Jersey, Inc.
New Morgan Landfill Company, Inc.
Noble Road Landfill, Inc.
Port Clinton Landfill, Inc.
R.C. Miller Refuse Service, Inc.
Tom Lucianos Disposal Service, Inc.
Tricil (N.Y.), Inc.
II-152
SCHEDULE E
SUBSIDIARY GUARANTORS
Allied Waste Industries of Tennessee, Inc.
Delta Resources Corp.
GEK, Inc.
SCHEDULE F
SUBSIDIARY GUARANTORS
A D A J Corporation
Atlas Transport, Inc.
Bay Collection Services, Inc.
Bay Environmental Management, Inc.
Bay Landfills, Inc.
Bay Leasing Company, Inc.
McCusker Recycling, Inc.
Ohio Republic Contracts, II, Inc.
Ohio Republic Contracts, Inc.
Perdomo & Sons, Inc.
Republic Services Aviation, Inc.
Republic Services Holding Company, Inc.
Republic Services of Florida LP, Inc.
Republic Services of California Holding Company, Inc.
Republic Services of Indiana LP, Inc.
Republic Services of Michigan Holding Company, Inc.
Republic Services Real Estate Holding, Inc.
Republic Waste Services of Texas LP, Inc.
RI/Alameda Corp.
Sandy Hollow Landfill Corp.
Zakaroff Services
SCHEDULE G
SUBSIDIARY GUARANTORS
Berkeley Sanitary Service, Inc.
BLT Enterprises of Oxnard, Inc.
Crockett Sanitary Service, Inc.
Golden Bear Transfer Services, Inc.
Republic Dumpco, Inc.
Republic Environmental Technologies, Inc.
Republic Silver State Disposal, Inc.
Richmond Sanitary Service, Inc.
Solano Garbage Company
West Contra Costa Energy Recovery Company
II-153
West Contra Costa Sanitary Landfill, Inc.
West County Landfill, Inc.
West County Resource Recovery, Inc.
SCHEDULE H
SUBSIDIARY GUARANTORS
623 Landfill, Inc.
Calvert Trash Systems, Incorporated
Honeygo Run Reclamation Center, Inc.
SCHEDULE I
SUBSIDIARY GUARANTORS
Arc Disposal Company, Inc.
Barker Brothers Waste, Incorporated
Compactor Rental Systems of Delaware, Inc.
CWI of Illinois, Inc.
CWI of Missouri, Inc.
FLL, Inc.
Northwest Tennessee Disposal Corporation
Reliable Disposal, Inc.
Southern Illinois Regional Landfill, Inc.
Tay-Ban Corporation
Tri-County Refuse Service, Inc.
SCHEDULE J
SUBSIDIARY GUARANTORS
Envirocycle, Inc.
Republic Services of Florida GP, Inc.
Republic Waste Services of Texas GP, Inc.
Schofield Corporation of Orlando
SCHEDULE K
SUBSIDIARY GUARANTORS
Allied Waste Industries, Inc.
Allied Waste North America, Inc.
SCHEDULE L
SUBSIDIARY GUARANTORS
Republic Services Financial LP, Inc.
II-154
SCHEDULE M
SUBSIDIARY GUARANTORS
Dinverno, Inc.
SCHEDULE N
SUBSIDIARY GUARANTORS
BFI Waste Systems of New Jersey, Inc.
Waste Services of New York, Inc.
SCHEDULE O
SUBSIDIARY GUARANTORS
Abilene Landfill TX, LP
BFI Transfer Systems of Texas, LP
BFI Waste Services of Indiana, LP
BFI Waste Services of Texas, LP
BFI Waste Systems of Indiana, LP
Blue Ridge Landfill TX, LP
Brenham Total Roll-Offs, LP
Camelot Landfill TX, LP
Cefe Landfill TX, LP
Crow Landfill TX, L.P.
Desarrollo del Rancho La Gloria TX, LP
El Centro Landfill, L.P.
Ellis County Landfill TX, LP
Fort Worth Landfill TX, LP
Frontier Waste Services, L.P.
Galveston County Landfill TX, LP
Giles Road Landfill TX, LP
Golden Triangle Landfill TX, LP
Greenwood Landfill TX, LP
Gulf West Landfill TX, LP
Itasca Landfill TX, LP
Kerrville Landfill TX, LP
Lewisville Landfill TX, LP
Mars Road TX, LP
McCarty Road Landfill TX, LP
Mesquite Landfill TX, LP
Mexia Landfill TX, LP
Panama Road Landfill, TX, L.P.
Pine Hill Farms Landfill TX, LP
Pleasant Oaks Landfill TX, LP
Rio Grande Valley Landfill TX, LP
Royal Oaks Landfill TX, LP
South Central Texas Land Co. TX, LP
Southwest Landfill TX, LP
Tessman Road Landfill TX, LP
Turkey Creek Landfill TX, LP
Victoria Landfill TX, LP
Whispering Pines Landfill TX, LP
II-155
SCHEDULE P
SUBSIDIARY GUARANTORS
Benton County Development Company
Clinton County Landfill Partnership
County Line Landfill Partnership
Illiana Disposal Partnership
Jasper County Development Company Partnership
Key Waste Indiana Partnership
Lake County C & D Development Partnership
Newton County Landfill Partnership
Springfield Environmental General Partnership
Tippecanoe County Waste Services Partnership
Warrick County Development Company
SCHEDULE Q
SUBSIDIARY GUARANTORS
Benson Valley Landfill General Partnership
Blue Ridge Landfill General Partnership
Green Valley Landfill General Partnership
Morehead Landfill General Partnership
SCHEDULE R
SUBSIDIARY GUARANTORS
Republic Waste Services of Texas, Ltd.
RWS Transport, L.P.
SCHEDULE S
SUBSIDIARY GUARANTORS
BFI Energy Systems of Southeastern Connecticut, Limited Partnership
SCHEDULE T
SUBSIDIARY GUARANTORS
Oceanside Waste & Recycling Services
SCHEDULE U
SUBSIDIARY GUARANTORS
Rabanco Companies
SCHEDULE V
SUBSIDIARY GUARANTORS
Republic Services Financial, Limited Partnership
II-156
SCHEDULE W
SUBSIDIARY GUARANTORS
Republic Services of Florida, Limited Partnership
SCHEDULE X
SUBSIDIARY GUARANTORS
Republic Services of Georgia, Limited Partnership
SCHEDULE Y
SUBSIDIARY GUARANTORS
Republic Services of Indiana, Limited Partnership
SCHEDULE Z
SUBSIDIARY GUARANTORS
Republic Services of Wisconsin, Limited Partnership
SCHEDULE AA
SUBSIDIARY GUARANTORS
Agricultural Acquisitions, LLC
SCHEDULE BB
SUBSIDIARY GUARANTORS
Allied Gas Recovery Systems, L.L.C.
Allied Transfer Systems of New Jersey, LLC
Allied Waste Systems of New Jersey, LLC
Allied Waste Transfer Services of Lima, LLC
Anson County Landfill NC, LLC
AWIN Leasing II, LLC
BFI Waste Services, LLC
Bridgeton Landfill, LLC
Browning-Ferris Industries, LLC
Cumberland County Development Company, LLC
E Leasing Company, LLC
Flint Hill Road, LLC
H Leasing Company, LLC
Harrison County Landfill, LLC
Jackson County Landfill, LLC
Jefferson Parish Development Company, LLC
Little Creek Landing, LLC
Missouri City Landfill, LLC
N Leasing Company, LLC
New York Waste Services, LLC
Obscurity Land Development, LLC
II-157
Polk County Landfill, LLC
Prince Georges County Landfill, LLC
S Leasing Company, LLC
San Diego Landfill Systems, LLC
St. Bernard Parish Development Company, LLC
St. Joseph Landfill, LLC
Wayne County Land Development, LLC
SCHEDULE CC
SUBSIDIARY GUARANTORS
Allied Services, LLC
SCHEDULE DD
SUBSIDIARY GUARANTORS
Allied Waste Environmental Management Group, LLC
C & C Expanded Sanitary Landfill, LLC
SCHEDULE EE
SUBSIDIARY GUARANTORS
Allied Waste Niagara Falls Landfill, LLC
Allied Waste Recycling Services of New Hampshire, LLC
Allied Waste Systems of Michigan, LLC
Allied Waste Systems of Pennsylvania, LLC
Allied Waste Transfer Services of New York, LLC
Allied Waste Transfer Services of North Carolina, LLC
Allied Waste Transfer Services of Rhode Island, LLC
BFI Transfer Systems of Pennsylvania, LLC
SCHEDULE FF
SUBSIDIARY GUARANTORS
Allied Waste of New Jersey-New York, LLC
Allied Waste Services of Massachusetts, LLC
Allied Waste Sycamore Landfill, LLC
BFI Transfer Systems of Maryland, LLC
BFI Transfer Systems of Massachusetts, LLC
BFI Transfer Systems of Virginia, LLC
BFI Waste Services of Pennsylvania, LLC
BFI Waste Systems of Virginia, LLC
Brunswick Waste Management Facility, LLC
Greenridge Reclamation, LLC
Greenridge Waste Services, LLC
Lee County Landfill SC, LLC
Menands Environmental Solutions, LLC
Northeast Landfill, LLC
SCHEDULE GG
SUBSIDIARY GUARANTORS
II-158
Allied Waste Services of North America, LLC
Allied Waste Systems of Indiana, LLC
Allied Waste Systems of North Carolina, LLC
BFI Waste Systems of North America, LLC
Crescent Acres Landfill, LLC
Sand Valley Holdings, L.L.C.
SCHEDULE HH
SUBSIDIARY GUARANTORS
Allied Waste Systems of Arizona, LLC
Allied Waste Systems of Colorado, LLC
Allied Waste Systems of Montana, LLC
Allied Waste Transfer Services of California, LLC
Allied Waste Transfer Services of Oregon, LLC
SCHEDULE II
SUBSIDIARY GUARANTORS
Allied Waste Transfer Services of Arizona, LLC
Cactus Waste Systems, LLC
SCHEDULE JJ
SUBSIDIARY GUARANTORS
Allied Waste Transfer Services of Florida, LLC
SCHEDULE KK
SUBSIDIARY GUARANTORS
Allied Waste Transfer Services of Iowa, LLC
BFI Waste Systems of Missouri, LLC
BFI Waste Systems of Oklahoma, LLC
Butler County Landfill, LLC
Courtney Ridge Landfill, LLC
Ellis Scott Landfill MO, LLC
Forest View Landfill, LLC
Great Plains Landfill OK, LLC
Jefferson City Landfill, LLC
Lemons Landfill, LLC
Pinecrest Landfill OK, LLC
Show-Me Landfill, LLC
Southeast Landfill, LLC
SCHEDULE LL
SUBSIDIARY GUARANTORS
Ariana, LLC
II-159
SCHEDULE MM
SUBSIDIARY GUARANTORS
Autauga County Landfill, LLC
BFI Transfer Systems of Alabama, LLC
BFI Transfer Systems of Georgia, LLC
BFI Transfer Systems of Mississippi, LLC
BFI Waste Systems of Alabama, LLC
BFI Waste Systems of Arkansas, LLC
BFI Waste Systems of Georgia, LLC
BFI Waste Systems of Louisiana, LLC
BFI Waste Systems of Mississippi, LLC
BFI Waste Systems of Tennessee, LLC
Chilton Landfill, LLC
Gateway Landfill, LLC
Hancock County Development Company, LLC
Madison County Development, LLC
Willow Ridge Landfill, LLC
SCHEDULE NN
SUBSIDIARY GUARANTORS
BFGSI, L.L.C.
SCHEDULE OO
SUBSIDIARY GUARANTORS
BFI Transfer Systems of DC, LLC
BFI Waste Systems of Kentucky, LLC
BFI Waste Systems of Massachusetts, LLC
BFI Waste Systems of North Carolina, LLC
BFI Waste Systems of South Carolina, LLC
General Refuse Service of Ohio, LLC
Local Sanitation of Rowan County, L.L.C.
SCHEDULE PP
SUBSIDIARY GUARANTORS
Bridgeton Transfer Station, LLC
SCHEDULE QQ
SUBSIDIARY GUARANTORS
Carbon Limestone Landfill, LLC
County Land Development Landfill, LLC
Lorain County Landfill, LLC
Lucas County Landfill, LLC
SCHEDULE RR
SUBSIDIARY GUARANTORS
II-160
Central Virginia Properties, LLC
SCHEDULE SS
SUBSIDIARY GUARANTORS
Consolidated Disposal Service, L.L.C.
Republic Waste Services of Southern California, LLC
Rubbish Control, LLC
SCHEDULE TT
SUBSIDIARY GUARANTORS
Continental Waste Industries, L.L.C.
Republic Services of North Carolina, LLC
Republic Services of Pennsylvania, LLC
Republic Services of Virginia, LLC
SCHEDULE UU
SUBSIDIARY GUARANTORS
County Environmental Landfill, LLC
SCHEDULE VV
SUBSIDIARY GUARANTORS
D & L Disposal L.L.C.
Envotech-Illinois L.L.C.
Liberty Waste Services of McCook, L.L.C.
SCHEDULE WW
SUBSIDIARY GUARANTORS
ECDC Environmental, L.C.
SCHEDULE XX
SUBSIDIARY GUARANTORS
Evergreen Scavenger Service, L.L.C.
Packerton Land Company, L.L.C.
SCHEDULE YY
SUBSIDIARY GUARANTORS
Frontier Waste Services (Colorado), LLC
Frontier Waste Services (Utah), LLC
Frontier Waste Services of Louisiana L.L.C.
SCHEDULE ZZ
II-161
SUBSIDIARY GUARANTORS
Kandel Enterprises, LLC
SCHEDULE AAA
SUBSIDIARY GUARANTORS
Liberty Waste Services Limited, L.L.C.
SCHEDULE BBB
SUBSIDIARY GUARANTORS
Liberty Waste Services of Illinois, L.L.C.
SCHEDULE CCC
SUBSIDIARY GUARANTORS
Oklahoma City Landfill, L.L.C.
SCHEDULE DDD
SUBSIDIARY GUARANTORS
Republic Ohio Contracts, LLC
SCHEDULE EEE
SUBSIDIARY GUARANTORS
Republic Services Group, LLC
Republic Services of Georgia LP, LLC
Republic Services of South Carolina, LLC
Republic Services of Southern California, LLC
Republic Services of Wisconsin LP, LLC
SCHEDULE FFF
SUBSIDIARY GUARANTORS
Republic Services of Arizona Hauling, LLC
Republic Services of Colorado Hauling, LLC
Republic Services of Colorado I, LLC
SCHEDULE GGG
SUBSIDIARY GUARANTORS
Republic Services of California II, LLC
Republic Services Vasco Road, LLC
SCHEDULE HHH
SUBSIDIARY GUARANTORS
II-162
Republic Services of Georgia GP, LLC
SCHEDULE III
SUBSIDIARY GUARANTORS
Republic Services of Kentucky, LLC
Republic Services of Wisconsin GP, LLC
SCHEDULE JJJ
SUBSIDIARY GUARANTORS
Republic Services of Michigan Hauling, LLC
Republic Services of Michigan I, LLC
Republic Services of Michigan II, LLC
Republic Services of Michigan III, LLC
Republic Services of Michigan IV, LLC
Republic Services of Michigan V, LLC
SCHEDULE KKK
SUBSIDIARY GUARANTORS
Republic Services of New Jersey, LLC
SCHEDULE LLL
SUBSIDIARY GUARANTORS
Republic Services of Ohio Hauling, LLC
SCHEDULE MMM
SUBSIDIARY GUARANTORS
Republic Services of Ohio I, LLC
Republic Services of Ohio II, LLC
Republic Services of Ohio III, LLC
Republic Services of Ohio IV, LLC
SCHEDULE NNN
SUBSIDIARY GUARANTORS
BFI Waste Services of Tennessee, LLC
SCHEDULE OOO
SUBSIDIARY GUARANTORS
RITM, LLC
SCHEDULE PPP
II-163
SUBSIDIARY GUARANTORS
Total Roll-Offs, L.L.C.
SCHEDULE QQQ
SUBSIDIARY GUARANTORS
Wayne Developers, LLC
SCHEDULE RRR
SUBSIDIARY GUARANTORS
Webster Parish Landfill, L.L.C.
SCHEDULE SSS
SUBSIDIARY GUARANTORS
Republic Services of Indiana Transportation, LLC
II-164
INDEX TO EXHIBITS
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Exhibit |
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Number |
|
Description |
3.1
|
|
Amended and Restated Certificate of Incorporation of Republic Services, Inc. (incorporated by
reference to Exhibit 3.1 to Republics Quarterly Report on Form 10-Q for the period ended June 30,
1998). |
|
|
|
3.2
|
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Republic
Services, Inc. (incorporated by reference to Exhibit 4.2 to Republics Registration Statement on
Form S-8, Registration No. 333-81801, filed with the Commission on June 29, 1999). |
|
|
|
3.3
|
|
Amended and Restated Bylaws of Republic Services, Inc. (incorporated by reference to Exhibit 3.1
to Republics Current Report on Form 8-K filed on October 30, 2009). |
|
|
|
3.4
|
|
Articles of Incorporation of 623 Landfill, Inc., as amended. |
|
|
|
3.5
|
|
Amended and Restated Bylaws of 623 Landfill, Inc. |
|
|
|
3.6
|
|
Articles of Incorporation of A D A J Corporation. |
|
|
|
3.7
|
|
Second Amended and Restated Bylaws of A D A J Corporation. |
|
|
|
3.8
|
|
Certificate of Limited Partnership of Abilene Landfill TX, LP. |
|
|
|
3.9
|
|
Agreement of Limited Partnership of Abilene Landfill TX, LP, as amended. |
|
|
|
3.10
|
|
Articles of Incorporation of Action Disposal, Inc. |
|
|
|
3.11
|
|
Amended and Restated Bylaws of Action Disposal, Inc. |
|
|
|
3.12
|
|
Articles of Incorporation of Ada County Development Company, Inc. |
|
|
|
3.13
|
|
Bylaws of Ada County Development Company, Inc. |
|
|
|
3.14
|
|
Articles of Incorporation of Adrian Landfill, Inc. (f/k/a Adrian County Landfill, Inc., f/k/a
Laidlaw Waste Systems (Adrian) Inc., f/k/a Laidlaw Waste Systems (Michigan) Inc., f/k/a Lenawee
Disposal Service Company), as amended. |
|
|
|
3.15
|
|
Amended and Restated Bylaws of Adrian Landfill, Inc. (f/k/a Adrian County Landfill, Inc., f/k/a
Laidlaw Waste Systems (Adrian) Inc., f/k/a Laidlaw Waste Systems (Michigan) Inc., f/k/a Lenawee
Disposal Service Company), as amended. |
|
|
|
3.16
|
|
Articles of Incorporation of ADS of Illinois, Inc. (f/k/a American Disposal Services of Illinois,
Inc.), as amended. |
|
|
|
3.17
|
|
Amended and Restated Bylaws of ADS of Illinois, Inc. (f/k/a American Disposal Services of
Illinois, Inc.). |
|
|
|
3.18
|
|
Certificate of Incorporation of ADS, Inc. (f/k/a American Disposal Services, Inc.), as amended. |
|
|
|
3.19
|
|
Amended and Restated Bylaws of ADS, Inc. (f/k/a American Disposal Services, Inc.). |
|
|
|
3.20
|
|
Articles of Organization of Agricultural Acquisitions, LLC, as amended. |
|
|
|
3.21
|
|
Operating Agreement for Agricultural Acquisitions, LLC. |
|
|
|
3.22
|
|
Articles of Incorporation of Agri-Tech, Inc. of Oregon (f/k/a Agri-Tech Inc.), as amended. |
|
|
|
3.23
|
|
Amended and Restated Bylaws of Agri-Tech, Inc. of Oregon (f/k/a Agri-Tech Inc.). |
|
|
|
3.24
|
|
Articles of Incorporation of Alabama Recycling Services, Inc. (f/k/a ECS Environmental
Contractors, Inc.), as amended. |
|
|
|
3.25
|
|
Amended and Restated Bylaws of Alabama Recycling Services, Inc. (f/k/a ECS Environmental
Contractors, Inc.). |
II-165
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.26
|
|
Articles of Incorporation of Albany-Lebanon Sanitation, Inc. (f/k/a The Spay-Redfield
Corporation), as amended. |
|
|
|
3.27
|
|
Amended and Restated Bylaws of Albany-Lebanon Sanitation, Inc. (f/k/a The Spay-Redfield
Corporation). |
|
|
|
3.28
|
|
Articles of Incorporation of Allied Acquisition Pennsylvania, Inc. |
|
|
|
3.29
|
|
Bylaws of Allied Acquisition Pennsylvania, Inc. |
|
|
|
3.30
|
|
Articles of Organization of Allied Acquisition Two, Inc. |
|
|
|
3.31
|
|
Bylaws of Allied Acquisition Two, Inc. |
|
|
|
3.32
|
|
Certificate of Incorporation of Allied Enviroengineering, Inc. |
|
|
|
3.33
|
|
Amended and Restated Bylaws of Allied Enviroengineering, Inc. |
|
|
|
3.34
|
|
Certificate of Formation of Allied Gas Recovery Systems, L.L.C., as amended. |
|
|
|
3.35
|
|
Operating Agreement of Allied Gas Recovery Systems, L.L.C. |
|
|
|
3.36
|
|
Certificate of Incorporation of Allied Green Power, Inc. |
|
|
|
3.37
|
|
Bylaws of Allied Green Power, Inc. |
|
|
|
3.38
|
|
Certificate of Incorporation of Allied Nova Scotia, Inc., as amended. |
|
|
|
3.39
|
|
Bylaws of Allied Nova Scotia, Inc. |
|
|
|
3.40
|
|
Certificate of Formation of Allied Services, LLC, as amended. |
|
|
|
3.41
|
|
Amended and Restated Operating Agreement of Allied Services, LLC. |
|
|
|
3.42
|
|
Certificate of Formation of Allied Transfer Systems of New Jersey, LLC. |
|
|
|
3.43
|
|
Operating Agreement of Allied Transfer Systems of New Jersey, LLC. |
|
|
|
3.44
|
|
Certificate of Incorporation of Allied Waste Alabama, Inc. |
|
|
|
3.45
|
|
Bylaws of Allied Waste Alabama, Inc. |
|
|
|
3.46
|
|
Certificate of Incorporation of Allied Waste Company, Inc. (f/k/a Allied Waste Systems, Inc.), as
amended. |
|
|
|
3.47
|
|
Bylaws of Allied Waste Company, Inc. (f/k/a Allied Waste Systems, Inc.). |
|
|
|
3.48
|
|
Certificate of Formation of Allied Waste Environmental Management Group, LLC. |
|
|
|
3.49
|
|
Operating Agreement of Allied Waste Environmental Management Group, LLC. |
|
|
|
3.50
|
|
Articles of Incorporation of Allied Waste Hauling of Georgia, Inc. |
|
|
|
3.51
|
|
Bylaws of Allied Waste Hauling of Georgia, Inc. |
|
|
|
3.52
|
|
Certificate of Incorporation of Allied Waste Holdings (Canada) Ltd. |
|
|
|
3.53
|
|
Amended and Restated Bylaws of Allied Waste Holdings (Canada) Ltd. |
|
|
|
3.54
|
|
Articles of Incorporation of Allied Waste Industries (Arizona), Inc. |
|
|
|
3.55
|
|
Bylaws of Allied Waste Industries (Arizona), Inc. |
|
|
|
3.56
|
|
Articles of Incorporation of Allied Waste Industries (New Mexico), Inc. |
|
|
|
3.57
|
|
Bylaws of Allied Waste Industries (New Mexico), Inc. |
|
|
|
3.58
|
|
Articles of Incorporation of Allied Waste Industries (Southwest), Inc. |
|
|
|
3.59
|
|
Bylaws of Allied Waste Industries (Southwest), Inc. |
|
|
|
3.60
|
|
Articles of Incorporation of Allied Waste Industries of Georgia, Inc. |
II-166
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.61
|
|
Bylaws of Allied Waste Industries of Georgia, Inc. |
|
|
|
3.62
|
|
Articles of Incorporation of Allied Waste Industries of Illinois, Inc. |
|
|
|
3.63
|
|
Bylaws of Allied Waste Industries of Illinois, Inc. |
|
|
|
3.64
|
|
Articles of Incorporation of Allies Waste Industries of Northwest Indiana, Inc. |
|
|
|
3.65
|
|
Bylaws of Allies Waste Industries of Northwest Indiana, Inc. |
|
|
|
3.66
|
|
Charter of Allied Waste Industries of Tennessee, Inc. |
|
|
|
3.67
|
|
Bylaws of Allied Waste Industries of Tennessee, Inc. |
|
|
|
3.68
|
|
Amended and Restated Certificate of Incorporation of Allied Waste Industries, Inc. |
|
|
|
3.69
|
|
Amended and Restated Bylaws of Allied Waste Industries, Inc. |
|
|
|
3.70
|
|
Certificate of Incorporation of Allied Waste Landfill Holdings, Inc. |
|
|
|
3.71
|
|
Bylaws of Allied Waste Landfill Holdings, Inc. |
|
|
|
3.72
|
|
Articles of Organization of Allied Waste Niagara Falls Landfill, LLC. |
|
|
|
3.73
|
|
Operating Agreement of Allied Waste Niagara Falls Landfill, LLC. |
|
|
|
3.74
|
|
Certificate of Incorporation of Allied Waste North America, Inc. (f/k/a Allied Holdings (United
States), Inc.), as amended. |
|
|
|
3.75
|
|
Bylaws of Allied Waste North America, Inc. (f/k/a Allied Holdings (United States), Inc.). |
|
|
|
3.76
|
|
Articles of Incorporation of Allied Waste of California, Inc. |
|
|
|
3.77
|
|
Bylaws of Allied Waste of California, Inc. |
|
|
|
3.78
|
|
Certificate of Incorporation of Allied Waste of Long Island, Inc. |
|
|
|
3.79
|
|
Bylaws of Allied Waste of Long Island, Inc. |
|
|
|
3.80
|
|
Certificate of Incorporation of Allied Waste of New Jersey, Inc. |
|
|
|
3.81
|
|
Bylaws of Allied Waste of New Jersey, Inc. |
|
|
|
3.82
|
|
Certificate of Formation of Allied Waste of New Jersey-New York, LLC (f/k/a Allied Waste of New
Jersey, LLC), as amended. |
|
|
|
3.83
|
|
Operating Agreement of Allied Waste of New Jersey-New York, LLC (f/k/a Allied Waste of New Jersey,
LLC). |
|
|
|
3.84
|
|
Certificate of Formation of Allied Waste Recycling Services of New Hampshire, LLC. |
|
|
|
3.85
|
|
Operating Agreement of Allied Waste Recycling Services of New Hampshire, LLC. |
|
|
|
3.86
|
|
Certificate of Incorporation of Allied Waste Rural Sanitation, Inc. |
|
|
|
3.87
|
|
Bylaws of Allied Waste Rural Sanitation, Inc. |
|
|
|
3.88
|
|
Certificate of Incorporation of Allied Waste Services of Colorado, Inc. |
|
|
|
3.89
|
|
Bylaws of Allied Waste Services of Colorado, Inc. |
|
|
|
3.90
|
|
Certificate of Organization of Allied Waste Services of Massachusetts, LLC (f/k/a BFI Waste
Services of Massachusetts, LLC), as amended. |
|
|
|
3.91
|
|
Operating Agreement of Allied Waste Services of Massachusetts, LLC (f/k/a BFI Waste Services of
Massachusetts, LLC), as amended. |
|
|
|
3.92
|
|
Certificate of Formation of Allied Waste Services of North America, LLC. |
|
|
|
3.93
|
|
Operating Agreement of Allied Waste Services of North America, LLC, as amended. |
II-167
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.94
|
|
Articles of Incorporation of Allied Waste Services of Page, Inc. (f/k/a PSI Waste Systems, Inc.,
f/k/a Parks & Sons Intermountain, Inc.), as amended. |
|
|
|
3.95
|
|
Bylaws of Allied Waste Services of Page, Inc. (f/k/a PSI Waste Systems, Inc., f/k/a Parks & Sons
Intermountain, Inc.). |
|
|
|
3.96
|
|
Articles of Incorporation of Allied Waste Services of Stillwater, Inc. (f/k/a H.E.W. Waste
Systems, Inc.), as amended. |
|
|
|
3.97
|
|
Amended and Restated Bylaws of Allied Waste Services of Stillwater, Inc. (f/k/a H.E.W. Waste
Systems, Inc.). |
|
|
|
3.98
|
|
Certificate of Formation of Allied Waste Sycamore Landfill, LLC. |
|
|
|
3.99
|
|
Operating Agreement of Allied Waste Sycamore Landfill, LLC. |
|
|
|
3.100
|
|
Certificate of Incorporation of Allied Waste Systems Holdings, Inc. (f/k/a Laidlaw Waste Systems
Holdings, Inc., f/k/a Peabody Sanitary Landfill, Inc.), as amended. |
|
|
|
3.101
|
|
Bylaws of Allied Waste Systems Holdings, Inc. (f/k/a Laidlaw Waste Systems Holdings, Inc., f/k/a
Peabody Sanitary Landfill, Inc.). |
|
|
|
3.102
|
|
Articles of Organization of Allied Waste Systems of Arizona, LLC. |
|
|
|
3.103
|
|
Operating Agreement of Allied Waste Systems of Arizona, LLC. |
|
|
|
3.104
|
|
Articles of Organization of Allied Waste Systems of Colorado, LLC. |
|
|
|
3.105
|
|
Operating Agreement of Allied Waste Systems of Colorado, LLC. |
|
|
|
3.106
|
|
Certificate of Formation of Allied Waste Systems of Indiana, LLC. |
|
|
|
3.107
|
|
Operating Agreement of Allied Waste Systems of Indiana, LLC. |
|
|
|
3.108
|
|
Articles of Organization of Allied Waste Systems of Michigan, LLC. |
|
|
|
3.109
|
|
Operating Agreement of Allied Waste Systems of Michigan, LLC. |
|
|
|
3.110
|
|
Articles of Organization of Allied Waste Systems of Montana, LLC. |
|
|
|
3.111
|
|
Amended Operating Agreement of Allied Waste Systems of Montana, LLC. |
|
|
|
3.112
|
|
Certificate of Formation of Allied Waste Systems of New Jersey, LLC. |
|
|
|
3.113
|
|
Operating Agreement of Allied Waste Systems of New Jersey, LLC. |
|
|
|
3.114
|
|
Articles of Organization of Allied Waste Systems of North Carolina, LLC. |
|
|
|
3.115
|
|
Operating Agreement of Allied Waste Systems of North Carolina, LLC. |
|
|
|
3.116
|
|
Certificate of Organization of Allied Waste Systems of Pennsylvania, LLC (f/k/a BFI Waste Systems
of North America, Inc.), as amended. |
|
|
|
3.117
|
|
Operating Agreement of Allied Waste Systems of Pennsylvania, LLC (f/k/a BFI Waste Systems of North
America, Inc.), as amended. |
|
|
|
3.118
|
|
Certificate of Incorporation of Allied Waste Systems, Inc. (f/k/a Laidlaw Systems Inc., f/k/a
Theta Systems, Inc., f/k/a Theta Associates, Inc., f/k/a Theta of Hinsdale, Inc.), as amended. |
|
|
|
3.119
|
|
Amended and Restated Bylaws of Allied Waste Systems, Inc. (f/k/a Laidlaw Systems Inc., f/k/a Theta
Systems, Inc., f/k/a Theta Associates, Inc., f/k/a Theta of Hinsdale, Inc.). |
|
|
|
3.120
|
|
Certificate of Formation of Allied Waste Transfer Services of Arizona, LLC. |
|
|
|
3.121
|
|
Operating Agreement of Allied Waste Transfer Services of Arizona, LLC. |
|
|
|
3.122
|
|
Articles of Organization of Allied Waste Transfer Services of California, LLC. |
|
|
|
3.123
|
|
Operating Agreement of Allied Waste Transfer Services of California, LLC. |
II-168
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.124
|
|
Articles of Organization of Allied Waste Transfer Services of Florida, LLC. |
|
|
|
3.125
|
|
Operating Agreement of Allied Waste Transfer Services of Florida, LLC. |
|
|
|
3.126
|
|
Articles of Organization of Allied Waste Transfer Services of Iowa, LLC. |
|
|
|
3.127
|
|
Operating Agreement of Allied Waste Transfer Services of Iowa, LLC. |
|
|
|
3.128
|
|
Articles of Organization of Allied Waste Transfer Services of Lima, LLC. |
|
|
|
3.129
|
|
Operating Agreement of Allied Waste Transfer Services of Lima, LLC. |
|
|
|
3.130
|
|
Articles of Organization of Allied Waste Transfer Services of New York, LLC. |
|
|
|
3.131
|
|
Operating Agreement of Allied Waste Transfer Services of New York, LLC. |
|
|
|
3.132
|
|
Articles of Organization of Allied Waste Transfer Services of North Carolina, LLC. |
|
|
|
3.133
|
|
Operating Agreement of Allied Waste Transfer Services of North Carolina, LLC. |
|
|
|
3.134
|
|
Articles of Organization of Allied Waste Transfer Services of Oregon, LLC. |
|
|
|
3.135
|
|
Operating Agreement of Allied Waste Transfer Services of Oregon, LLC. |
|
|
|
3.136
|
|
Certificate of Formation of Allied Waste Transfer Services of Rhode Island, LLC. |
|
|
|
3.137
|
|
Operating Agreement of Allied Waste Transfer Services of Rhode Island, LLC. |
|
|
|
3.138
|
|
Articles of Incorporation of Allied Waste Transfer Services of Utah, Inc. |
|
|
|
3.139
|
|
Bylaws of Allied Waste Transfer Services of Utah, Inc. |
|
|
|
3.140
|
|
Certificate of Incorporation of Allied Waste Transportation, Inc. |
|
|
|
3.141
|
|
Bylaws of Allied Waste Transportation, Inc. |
|
|
|
3.142
|
|
Certificate of Incorporation of American Disposal Services of Illinois, Inc. (f/k/a County
Disposal (Illinois), Inc.), as amended. |
|
|
|
3.143
|
|
Amended and Restated Bylaws of American Disposal Services of Illinois, Inc. (f/k/a County Disposal
(Illinois), Inc.). |
|
|
|
3.144
|
|
Articles of Incorporation of American Disposal Services of Kansas, Inc. (f/k/a Burgan Trucking and
Excavating, Inc.), as amended. |
|
|
|
3.145
|
|
Amended and Restated Bylaws of American Disposal Services of Kansas, Inc. (f/k/a Burgan Trucking
and Excavating, Inc.). |
|
|
|
3.146
|
|
Certificate of Incorporation of American Disposal Services of Missouri, Inc. (f/k/a Missouri
Disposal, Inc., f/k/a Joplin Disposal, Inc.), as amended. |
|
|
|
3.147
|
|
Amended and Restated Bylaws of American Disposal Services of Missouri, Inc. (f/k/a Missouri
Disposal, Inc., f/k/a Joplin Disposal, Inc.). |
|
|
|
3.148
|
|
Certificate of Incorporation of American Disposal Services of New Jersey, Inc. |
|
|
|
3.149
|
|
Amended and Restated Bylaws of American Disposal Services of New Jersey, Inc. |
|
|
|
3.150
|
|
Certificate of Incorporation of American Disposal Services of West Virginia, Inc. |
|
|
|
3.151
|
|
Amended and Restated Bylaws of American Disposal Services of West Virginia, Inc. |
|
|
|
3.152
|
|
Certificate of Incorporation of American Disposal Services, Inc., as amended. |
|
|
|
3.153
|
|
Amended and Restated Bylaws of American Disposal Services, Inc. |
|
|
|
3.154
|
|
Certificate of Incorporation of American Disposal Transfer Services of Illinois, Inc. |
|
|
|
3.155
|
|
Amended and Restated Bylaws of American Disposal Transfer Services of Illinois, Inc. |
|
|
|
3.156
|
|
Certificate of Incorporation of American Materials Recycling Corp. |
II-169
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.157
|
|
Amended and Restated Bylaws of American Materials Recycling Corp. |
|
|
|
3.158
|
|
Articles of Incorporation of American Sanitation, Inc. |
|
|
|
3.159
|
|
Amended and Restated Bylaws of American Sanitation, Inc. |
|
|
|
3.160
|
|
Certificate of Incorporation of American Transfer Company, Inc. (f/k/a Duffy Ave. Realty Corp.),
as amended. |
|
|
|
3.161
|
|
Amended and Restated Bylaws of American Transfer Company, Inc. |
|
|
|
3.162
|
|
Certificate of Formation of Anson County Landfill NC, LLC. |
|
|
|
3.163
|
|
Operating Agreement of Anson County Landfill NC, LLC. |
|
|
|
3.164
|
|
Articles of Incorporation of Apache Junction Landfill Corporation. |
|
|
|
3.165
|
|
Bylaws of Apache Junction Landfill Corporation. |
|
|
|
3.166
|
|
Articles of Incorporation of Arc Disposal Company, Inc. |
|
|
|
3.167
|
|
Amended and Restated Bylaws of Arc Disposal Company, Inc. |
|
|
|
3.168
|
|
Articles of Incorporation of Area Disposal, Inc. (f/k/a Advanced Disposal Inc.), as amended. |
|
|
|
3.169
|
|
Amended and Restated Bylaws of Area Disposal, Inc. (f/k/a Advanced Disposal Inc.). |
|
|
|
3.170
|
|
Certificate of Formation of Ariana, LLC. |
|
|
|
3.171
|
|
Second Amended and Restated Operating Agreement of Ariana, LLC. |
|
|
|
3.172
|
|
Articles of Organization of Atlantic Waste Holding Company, Inc. |
|
|
|
3.173
|
|
Bylaws of Atlantic Waste Holding Company, Inc. |
|
|
|
3.174
|
|
Articles of Incorporation of Atlas Transport, Inc. |
|
|
|
3.175
|
|
Second Amended and Restated Bylaws of Atlas Transport, Inc. |
|
|
|
3.176
|
|
Certificate of Incorporation of Attwoods of North America, Inc. (f/k/a Stockley Road, Inc.), as
amended. |
|
|
|
3.177
|
|
Amended and Restated Bylaws of Attwoods of North America, Inc. |
|
|
|
3.178
|
|
Articles of Organization of Autauga County Landfill, LLC. |
|
|
|
3.179
|
|
Operating Agreement of Autauga County Landfill, LLC. |
|
|
|
3.180
|
|
Certificate of Incorporation of Automated Modular Systems, Inc., as amended. |
|
|
|
3.181
|
|
Amended and Restated Bylaws of Automated Modular Systems, Inc. |
|
|
|
3.182
|
|
Certificate of Incorporation of Autoshred, Inc. (f/k/a Autosred, Inc.), as amended. |
|
|
|
3.183
|
|
Amended and Restated Bylaws of Autoshred, Inc. (f/k/a Autosred, Inc.). |
|
|
|
3.184
|
|
Certificate of Incorporation of AWIN Leasing Company, Inc. |
|
|
|
3.185
|
|
Bylaws of AWIN Leasing Company, Inc. |
|
|
|
3.186
|
|
Articles of Organization of AWIN Leasing II, LLC. |
|
|
|
3.187
|
|
Operating Agreement of AWIN Leasing II, LLC. |
|
|
|
3.188
|
|
Certificate of Incorporation of AWIN Management, Inc. (f/k/a AWIN Finance Company, Inc.), as
amended. |
|
|
|
3.189
|
|
Bylaws of AWIN Management, Inc. (f/k/a AWIN Finance Company, Inc.). |
|
|
|
3.190
|
|
Charter of Barker Brothers Waste, Incorporated, as amended. |
|
|
|
3.191
|
|
Amended and Restated Bylaws of Barker Brothers Waste, Incorporated. |
II-170
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.192
|
|
Articles of Incorporation of Bay Collection Services, Inc. |
|
|
|
3.193
|
|
Second Amended and Restated Bylaws of Bay Collection Services, Inc. |
|
|
|
3.194
|
|
Articles of Incorporation of Bay Environmental Management, Inc. (f/k/a RSS Management
Corporation), as amended. |
|
|
|
3.195
|
|
Second Amended and Restated Bylaws of Bay Environmental Management, Inc. (f/k/a RSS Management
Corporation). |
|
|
|
3.196
|
|
Articles of Incorporation of Bay Landfills, Inc. |
|
|
|
3.197
|
|
Second Amended and Restated Bylaws of Bay Landfills, Inc. |
|
|
|
3.198
|
|
Articles of Incorporation of Bay Leasing Company, Inc. |
|
|
|
3.199
|
|
Second Amended and Restated Bylaws of Bay Leasing Company, Inc. |
|
|
|
3.200
|
|
Certificate of Incorporation of BBCO, Inc. |
|
|
|
3.201
|
|
Bylaws of BBCO, Inc. |
|
|
|
3.202
|
|
Articles of Incorporation of Belleville Landfill, Inc. (f/k/a Laidlaw Waste Systems (Belleville)
Inc., f/k/a Mid-States Disposal, Inc.), as amended. |
|
|
|
3.203
|
|
Bylaws of Belleville Landfill, Inc. (f/k/a Laidlaw Waste Systems (Belleville) Inc., f/k/a
Mid-States Disposal, Inc.). |
|
|
|
3.204
|
|
Partnership Agreement of Benson Valley Landfill General Partnership. |
|
|
|
3.205
|
|
Partnership Agreement of Benton County Development Company. |
|
|
|
3.206
|
|
Articles of Incorporation of Berkley Sanitary Service, Inc. |
|
|
|
3.207
|
|
Second Amended and Restated Bylaws of Berkley Sanitary Service, Inc. |
|
|
|
3.208
|
|
Certificate of Formation of BFGSI, L.L.C. |
|
|
|
3.209
|
|
Amended and Restated Operating Agreement of BFGSI, L.L.C. |
|
|
|
3.210
|
|
Certificate of Incorporation of BFI Atlantic, Inc. (f/k/a BFI Argentina, Inc.), as amended. |
|
|
|
3.211
|
|
Amended and Restated Bylaws of BFI Atlantic, Inc. |
|
|
|
3.212
|
|
Certificate of Incorporation of BFI Energy Systems of Albany, Inc. |
|
|
|
3.213
|
|
Amended and Restated Bylaws of BFI Energy Systems of Albany, Inc. |
|
|
|
3.214
|
|
Certificate of Incorporation of BFI Energy Systems of Delaware County, Inc. |
|
|
|
3.215
|
|
Amended and Restated Bylaws of BFI Energy Systems of Delaware County, Inc. |
|
|
|
3.216
|
|
Certificate of Incorporation of BFI Energy Systems of Essex County, Inc. (f/k/a BFI Energy Systems
of New Jersey, Inc.), as amended. |
|
|
|
3.217
|
|
Amended and Restated Bylaws of BFI Energy Systems of Essex County, Inc. |
|
|
|
3.218
|
|
Certificate of Incorporation of BFI Energy Systems of Hempstead, Inc. |
|
|
|
3.219
|
|
Amended and Restated Bylaws of BFI Energy Systems of Hempstead, Inc. |
|
|
|
3.220
|
|
Certificate of Incorporation of BFI Energy Systems of Niagara II, Inc. |
|
|
|
3.221
|
|
Amended and Restated Bylaws of BFI Energy Systems of Niagara II, Inc. |
|
|
|
3.222
|
|
Certificate of Incorporation of BFI Energy Systems of Niagara, Inc. (f/k/a BFI Energy Systems of
Northwestern Connecticut, Inc.), as amended. |
|
|
|
3.223
|
|
Amended and Restated Bylaws of BFI Energy Systems of Niagara, Inc. |
|
|
|
3.224
|
|
Certificate of Incorporation of BFI Energy Systems of SEMASS, Inc. |
II-171
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.225
|
|
Amended and Restated Bylaws of BFI Energy Systems of SEMASS, Inc. |
|
|
|
3.226
|
|
Certificate of Incorporation of BFI Energy Systems of Southeastern Connecticut, Inc. |
|
|
|
3.227
|
|
Amended and Restated Bylaws of BFI Energy Systems of Southeastern Connecticut, Inc. |
|
|
|
3.228
|
|
Certificate of Limited Partnership of BFI Energy Systems of Southeastern Connecticut, Limited
Partnership, as amended. |
|
|
|
3.229
|
|
Agreement of Limited Partnership of BFI Energy Systems of Southeastern Connecticut, Limited
Partnership. |
|
|
|
3.230
|
|
Certificate of Incorporation of BFI International, Inc. (f/k/a Browning-Ferris Overseas, Inc.), as
amended. |
|
|
|
3.231
|
|
Amended and Restated Bylaws of BFI International, Inc. |
|
|
|
3.232
|
|
Certificate of Incorporation of BFI REF-FUEL, INC. |
|
|
|
3.233
|
|
Amended and Restated Bylaws of BFI REF-FUEL, INC. |
|
|
|
3.234
|
|
Certificate of Incorporation of BFI Trans River (GP), Inc. (f/k/a BFI Energy Systems of
Kent/Sussex, Inc.), as amended. |
|
|
|
3.235
|
|
Amended and Restated Bylaws of BFI Trans River (GP), Inc. |
|
|
|
3.236
|
|
Certificate of Formation of BFI Transfer Systems of Alabama, LLC. |
|
|
|
3.237
|
|
Operating Agreement of BFI Transfer Systems of Alabama, LLC, as amended. |
|
|
|
3.238
|
|
Certificate of Formation of BFI Transfer Systems of DC, LLC. |
|
|
|
3.239
|
|
Operating Agreement of BFI Transfer Systems of DC, LLC. |
|
|
|
3.240
|
|
Certificate of Formation of BFI Transfer Systems of Georgia, LLC. |
|
|
|
3.241
|
|
Operating Agreement of BFI Transfer Systems of Georgia, LLC. |
|
|
|
3.242
|
|
Certificate of Formation of BFI Transfer Systems of Maryland, LLC (f/k/a BFI Transfer Systems of
Kentucky, LLC), as amended. |
|
|
|
3.243
|
|
Operating Agreement of BFI Transfer Systems of Maryland, LLC (f/k/a BFI Transfer Systems of
Kentucky, LLC), as amended. |
|
|
|
3.244
|
|
Certificate of Organization of BFI Transfer Systems of Massachusetts, LLC. |
|
|
|
3.245
|
|
Operating Agreement of BFI Transfer Systems of Massachusetts, LLC, as amended. |
|
|
|
3.246
|
|
Certificate of Formation of BFI Transfer Systems of Mississippi, LLC (f/k/a BFI Transfer Systems
of Tennessee, LLC), as amended. |
|
|
|
3.247
|
|
Operating Agreement of BFI Transfer Systems of Mississippi, LLC (f/k/a BFI Transfer Systems of
Tennessee, LLC). |
|
|
|
3.248
|
|
Certificate of Incorporation of BFI Transfer Systems of New Jersey, Inc., as amended. |
|
|
|
3.249
|
|
Amended and Restated Bylaws of BFI Transfer Systems of New Jersey, Inc. |
|
|
|
3.250
|
|
Certificate of Organization of BFI Transfer Systems of Pennsylvania, LLC. |
|
|
|
3.251
|
|
Operating Agreement of BFI Transfer Systems of Pennsylvania, LLC, as amended. |
|
|
|
3.252
|
|
Certificate of Limited Partnership of BFI Transfer Systems of Texas, LP. |
|
|
|
3.253
|
|
Agreement of Limited Partnership of BFI Transfer Systems of Texas, LP, as amended. |
|
|
|
3.254
|
|
Certificate of Formation of BFI Transfer Systems of Virginia, LLC. |
|
|
|
3.255
|
|
Operating Agreement of BFI Transfer Systems of Virginia, LLC, as amended. |
II-172
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.256
|
|
Certificate of Limited Partnership of BFI Waste Services of Indiana, LP, as amended. |
|
|
|
3.257
|
|
Agreement of Limited Partnership of BFI Waste Services of Indiana, LP, as amended. |
|
|
|
3.258
|
|
Certificate of Organization of BFI Waste Services of Pennsylvania, LLC. |
|
|
|
3.259
|
|
Operating Agreement of BFI Waste Services of Pennsylvania, LLC, as amended. |
|
|
|
3.260
|
|
Certificate of Formation of BFI Waste Services of Tennessee, LLC. |
|
|
|
3.261
|
|
Operating Agreement of BFI Waste Services of Tennessee, LLC. |
|
|
|
3.262
|
|
Certificate of Limited Partnership of BFI Waste Services of Texas, LP. |
|
|
|
3.263
|
|
Agreement of Limited Partnership of BFI Waste Services of Texas, LP, as amended. |
|
|
|
3.264
|
|
Certificate of Formation of BFI Waste Services, LLC, as amended. |
|
|
|
3.265
|
|
Operating Agreement of BFI Waste Services, LLC, as amended. |
|
|
|
3.266
|
|
Certificate of Formation of BFI Waste Systems of Alabama, LLC. |
|
|
|
3.267
|
|
Operating Agreement of BFI Waste Systems of Alabama, LLC, as amended. |
|
|
|
3.268
|
|
Certificate of Formation of BFI Waste Systems of Arkansas, LLC. |
|
|
|
3.269
|
|
Operating Agreement of BFI Waste Systems of Arkansas, LLC, as amended. |
|
|
|
3.270
|
|
Certificate of Formation of BFI Waste Systems of Georgia, LLC. |
|
|
|
3.271
|
|
Operating Agreement of BFI Waste Systems of Georgia, LLC, as amended. |
|
|
|
3.272
|
|
Certificate of Limited Partnership of BFI Waste Systems of Indiana, LP. |
|
|
|
3.273
|
|
Agreement of Limited Partnership of BFI Waste Systems of Indiana, LP. |
|
|
|
3.274
|
|
Certificate of Formation of BFI Waste Systems of Kentucky, LLC. |
|
|
|
3.275
|
|
Operating Agreement of BFI Waste Systems of Kentucky, LLC. |
|
|
|
3.276
|
|
Certificate of Formation of BFI Waste Systems of Louisiana, LLC. |
|
|
|
3.277
|
|
Operating Agreement of BFI Waste Systems of Louisiana, LLC, as amended. |
|
|
|
3.278
|
|
Certificate of Organization of BFI Waste Systems of Massachusetts, LLC. |
|
|
|
3.279
|
|
Operating Agreement of BFI Waste Systems of Massachusetts, LLC. |
|
|
|
3.280
|
|
Certificate of Formation of BFI Waste Systems of Mississippi, LLC. |
|
|
|
3.281
|
|
Operating Agreement of BFI Waste Systems of Mississippi, LLC, as amended. |
|
|
|
3.282
|
|
Certificate of Formation of BFI Waste Systems of Missouri, LLC. |
|
|
|
3.283
|
|
Operating Agreement of BFI Waste Systems of Missouri, LLC, as amended. |
|
|
|
3.284
|
|
Certificate of Incorporation of BFI Waste Systems of New Jersey, Inc. (f/k/a Browning-Ferris
Industries, of Elizabeth, N.J., Inc., f/k/a Elizabeth Disposal, Inc.), as amended. |
|
|
|
3.285
|
|
Amended and Restated Bylaws of BFI Waste Systems of New Jersey, Inc. |
|
|
|
3.286
|
|
Certificate of Formation of BFI Waste Systems of North America, LLC (f/k/a BFI Waste Systems of
North America, Inc., f/k/a BFI Transportation, Inc.), as amended. |
|
|
|
3.287
|
|
Operating Agreement of BFI Waste Systems of North America, LLC. |
|
|
|
3.288
|
|
Certificate of Formation of BFI Waste Systems of North Carolina, LLC. |
|
|
|
3.289
|
|
Operating Agreement of BFI Waste Systems of North Carolina, LLC. |
|
|
|
3.290
|
|
Articles of Organization of BFI Waste Systems of Oklahoma, LLC. |
II-173
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.291
|
|
Operating Agreement of BFI Waste Systems of Oklahoma, LLC, as amended. |
|
|
|
3.292
|
|
Certificate of Formation of BFI Waste Systems of South Carolina, LLC. |
|
|
|
3.293
|
|
Operating Agreement of BFI Waste Systems of South Carolina, LLC. |
|
|
|
3.294
|
|
Certificate of Formation of BFI Waste Systems of Tennessee, LLC. |
|
|
|
3.295
|
|
Operating Agreement of BFI Waste Systems of Tennessee, LLC, as amended. |
|
|
|
3.296
|
|
Certificate of Formation of BFI Waste Systems of Virginia, LLC. |
|
|
|
3.297
|
|
Operating Agreement of BFI Waste Systems of Virginia, LLC, as amended. |
|
|
|
3.298
|
|
Articles of Incorporation of Bio-Med of Oregon, Inc. (f/k/a O. D. Recycling, Ltd., f/k/a Pacific
Energy Recovery, Inc.), as amended. |
|
|
|
3.299
|
|
Amended and Restated Bylaws of Bio-Med of Oregon, Inc. |
|
|
|
3.300
|
|
Articles of Incorporation of BLT Enterprises of Oxnard, Inc., as amended. |
|
|
|
3.301
|
|
Second Amended and Restated Bylaws of BLT Enterprises of Oxnard, Inc. |
|
|
|
3.302
|
|
Partnership Agreement of Blue Ridge Landfill General Partnership. |
|
|
|
3.303
|
|
Certificate of Limited Partnership of Blue Ridge Landfill TX, LP (f/k/a BFI Waste Systems of
Texas, LP), as amended. |
|
|
|
3.304
|
|
Agreement of Limited Partnership of Blue Ridge Landfill TX, LP (f/k/a BFI Waste Systems of Texas,
LP), as amended. |
|
|
|
3.305
|
|
Certificate of Incorporation of Bond County Landfill, Inc. (f/k/a Kankeekee RDF Landfill, Inc.,
f/k/a Draw Acquisition Company Twenty-Three), as amended. |
|
|
|
3.306
|
|
Bylaws of Bond County Landfill, Inc. (f/k/a Kankeekee RDF Landfill, Inc., f/k/a Draw Acquisition
Company Twenty-Three). |
|
|
|
3.307
|
|
Articles of Incorporation of Borrego Landfill, Inc. |
|
|
|
3.308
|
|
Bylaws of Borrego Landfill, Inc. |
|
|
|
3.309
|
|
Articles of Incorporation of Borrow Pit Corp. |
|
|
|
3.310
|
|
Amended and Restated Bylaws of Borrow Pit Corp. |
|
|
|
3.311
|
|
Certificate of Limited Partnership of Brenham Total Roll-Offs, LP. |
|
|
|
3.312
|
|
Agreement of Limited Partnership of Brenham Total Roll-Offs, LP. |
|
|
|
3.313
|
|
Articles of Incorporation of Brickyard Disposal & Recycling, Inc. (f/k/a H/L Disposal Co.), as
amended. |
|
|
|
3.314
|
|
Amended and Restated Bylaws of Brickyard Disposal & Recycling, Inc. |
|
|
|
3.315
|
|
Certificate of Formation of Bridgeton Landfill, LLC. |
|
|
|
3.316
|
|
Operating Agreement of Bridgeton Landfill, LLC. |
|
|
|
3.317
|
|
Certificate of Formation of Bridgeton Transfer Station, LLC. |
|
|
|
3.318
|
|
Operating Agreement of Bridgeton Transfer Station, LLC. |
|
|
|
3.319
|
|
Certificate of Incorporation of Browning-Ferris Financial Services, Inc. |
|
|
|
3.320
|
|
Amended and Restated Bylaws of Browning-Ferris Financial Services, Inc. |
|
|
|
3.321
|
|
Articles of Incorporation of Browning-Ferris Industries Chemical Services, Inc. |
|
|
|
3.322
|
|
Amended and Restated Bylaws of Browning-Ferris Industries Chemical Services, Inc. |
II-174
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.323
|
|
Articles of Incorporation of Browning-Ferris Industries of California, Inc. (f/k/a Browning-Ferris
Industries of Southern California, Inc., f/k/a BFI Waste Systems of Southern California, Inc.), as
amended. |
|
|
|
3.324
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of California, Inc. |
|
|
|
3.325
|
|
Certificate of Incorporation of Browning-Ferris Industries of Florida, Inc. |
|
|
|
3.326
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of Florida, Inc. |
|
|
|
3.327
|
|
Certificate of Incorporation of Browning-Ferris Industries of Illinois, Inc. (f/k/a BFI of
Illinois, Inc.), as amended. |
|
|
|
3.328
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of Illinois, Inc. |
|
|
|
3.329
|
|
Certificate of Incorporation of Browning-Ferris Industries of New Jersey, Inc. |
|
|
|
3.330
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of New Jersey, Inc. |
|
|
|
3.331
|
|
Certificate of Incorporation of Browning-Ferris Industries of New York, Inc. (f/k/a Modern Waste
Service, Inc., f/k/a T. Pedone & Sons, Inc.), as amended. |
|
|
|
3.332
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of New York, Inc. |
|
|
|
3.333
|
|
Certificate of Incorporation of Browning-Ferris Industries of Ohio, Inc., as amended. |
|
|
|
3.334
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of Ohio, Inc. |
|
|
|
3.335
|
|
Restated Charter of Browning-Ferris Industries of Tennessee, Inc. (f/k/a Browning-Ferris
Industries of Memphis, Inc., f/k/a Patterson Waste Control, Inc., f/k/a PWC, Inc.). |
|
|
|
3.336
|
|
Amended and Restated Bylaws of Browning-Ferris Industries of Tennessee, Inc. |
|
|
|
3.337
|
|
Articles of Organization of Browning-Ferris Industries, Inc. (f/k/a BFI Waste Systems of |
|
|
Massachusetts, Inc., f/k/a Dooley Bros., Inc.), as amended. |
|
|
|
3.338
|
|
Amended and Restated Bylaws of Browning-Ferris Industries, Inc. |
|
|
|
3.339
|
|
Certificate of Formation of Browning-Ferris Industries, LLC (f/k/a Browning-Ferris Industries,
Inc.). |
|
|
|
3.340
|
|
Operating Agreement of Browning-Ferris Industries, LLC. |
|
|
|
3.341
|
|
Certificate of Incorporation of Browning-Ferris Services, Inc., as amended. |
|
|
|
3.342
|
|
Amended and Restated Bylaws of Browning-Ferris Services, Inc. |
|
|
|
3.343
|
|
Articles of Incorporation of Browning-Ferris, Inc. |
|
|
|
3.344
|
|
Amended and Restated Bylaws of Browning-Ferris, Inc. |
|
|
|
3.345
|
|
Certificate of Formation of Brunswick Waste Management Facility, LLC (f/k/a Brunswick County
Landfill, LLC), as amended. |
|
|
|
3.346
|
|
Operating Agreement of Brunswick Waste Management Facility, LLC (f/k/a Brunswick County Landfill,
LLC). |
|
|
|
3.347
|
|
Articles of Incorporation of Bunting Trash Service, Inc. |
|
|
|
3.348
|
|
Amended and Restated Bylaws of Bunting Trash Service, Inc. |
|
|
|
3.349
|
|
Certificate of Formation of Butler County Landfill, LLC. |
|
|
|
3.350
|
|
Operating Agreement of Butler County Landfill, LLC. |
|
|
|
3.351
|
|
Articles of Organization of C & C Expanded Sanitary Landfill, LLC. |
|
|
|
3.352
|
|
Operating Agreement of C & C Expanded Sanitary Landfill, LLC. |
|
|
|
3.353
|
|
Articles of Organization of Cactus Waste Systems, LLC (f/k/a Cactus Waste Systems LLC), as amended. |
II-175
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.354
|
|
Amended and Restated Operating Agreement of Cactus Waste Systems, LLC. |
|
|
|
3.355
|
|
Articles of Incorporation of Calvert Trash Systems, Incorporated (f/k/a GLJ Equipment Company,
Incorporated), as amended. |
|
|
|
3.356
|
|
Amended and Restated Bylaws of Calvert Trash Systems, Incorporated. |
|
|
|
3.357
|
|
Certificate of Limited Partnership of Camelot Landfill TX, LP. |
|
|
|
3.358
|
|
Agreement of Limited Partnership of Camelot Landfill TX, LP. |
|
|
|
3.359
|
|
Articles of Incorporation of Capitol Recycling and Disposal, Inc., as amended. |
|
|
|
3.360
|
|
Amended and Restated Bylaws of Capitol Recycling and Disposal, Inc. |
|
|
|
3.361
|
|
Articles of Organization of Carbon Limestone Landfill, LLC. |
|
|
|
3.362
|
|
Operating Agreement of Carbon Limestone Landfill, LLC. |
|
|
|
3.363
|
|
Certificate of Incorporation of CC Landfill, Inc. |
|
|
|
3.364
|
|
Bylaws of CC Landfill, Inc. |
|
|
|
3.365
|
|
Certificate of Incorporation of CECOS International, Inc. (f/k/a CECOS, Chemical and Environmental
Conservation Systems, Inc., f/k/a Newco Chemical Waste Systems, Inc.), as amended. |
|
|
|
3.366
|
|
Amended and Restated Bylaws of CECOS International, Inc. |
|
|
|
3.367
|
|
Certificate of Limited Partnership of Cefe Landfill TX, LP (f/k/a BFI Elliott Landfill TX, LP), as
amended. |
|
|
|
3.368
|
|
Agreement of Limited Partnership of Cefe Landfill TX, LP (f/k/a BFI Elliott Landfill TX, LP), as
amended. |
|
|
|
3.369
|
|
Articles of Incorporation of Celina Landfill, Inc. (f/k/a Laidlaw Waste Systems (Celina), Inc.,
f/k/a Laidlaw Waste Systems (Ohio) Inc., f/k/a WBT, Inc.), as amended. |
|
|
|
3.370
|
|
Code of Regulations of Celina Landfill, Inc. (f/k/a Laidlaw Waste Systems (Celina), Inc., f/k/a
Laidlaw Waste Systems (Ohio) Inc., f/k/a WBT, Inc.). |
|
|
|
3.371
|
|
Articles of Incorporation of Central Arizona Transfer, Inc. |
|
|
|
3.372
|
|
Bylaws of Central Arizona Transfer, Inc. |
|
|
|
3.373
|
|
Articles of Incorporation of Central Sanitary Landfill, Inc., as amended. |
|
|
|
3.374
|
|
Bylaws of Central Sanitary Landfill, Inc. |
|
|
|
3.375
|
|
Articles of Organization of Central Virginia Properties, LLC. |
|
|
|
3.376
|
|
Operating Agreement of Central Virginia Properties, LLC. |
|
|
|
3.377
|
|
Articles of Incorporation of Charter Evaporation Resource Recovery Systems, as amended. |
|
|
|
3.378
|
|
Amended and Restated Bylaws of Charter Evaporation Resource Recovery Systems. |
|
|
|
3.379
|
|
Articles of Incorporation of Cherokee Run Landfill, Inc. (f/k/a Laidlaw Waste Systems
(Bellefontaine) Inc., f/k/a Logan Waste Control, Inc.), as amended. |
|
|
|
3.380
|
|
Regulations of Cherokee Run Landfill, Inc. (f/k/a Laidlaw Waste Systems (Bellefontaine) Inc.,
f/k/a Logan Waste Control, Inc.). |
|
|
|
3.381
|
|
Certificate of Formation of Chilton Landfill, LLC. |
|
|
|
3.382
|
|
Operating Agreement of Chilton Landfill, LLC. |
|
|
|
3.383
|
|
Articles of Incorporation of Citizens Disposal, Inc., as amended. |
|
|
|
3.384
|
|
Bylaws of Citizens Disposal, Inc. |
II-176
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.385
|
|
Articles of Incorporation of City-Star Services, Inc., as amended. |
|
|
|
3.386
|
|
Bylaws of City-Star Services, Inc. |
|
|
|
3.387
|
|
Articles of Incorporation of Clarkston Disposal, Inc., as amended. |
|
|
|
3.388
|
|
Bylaws of Clarkston Disposal, Inc. |
|
|
|
3.389
|
|
Partnership Agreement of Clinton County Landfill Partnership. |
|
|
|
3.390
|
|
Certificate of Incorporation of Cocopah Landfill, Inc. |
|
|
|
3.391
|
|
Bylaws of Cocopah Landfill, Inc. |
|
|
|
3.392
|
|
Certificate of Incorporation of Compactor Rental Systems of Delaware, Inc. (f/k/a Republic
Industries Compactor Rental, Inc.), as amended. |
|
|
|
3.393
|
|
Amended and Restated Bylaws of Compactor Rental Systems of Delaware, Inc. |
|
|
|
3.394
|
|
Certificate of Formation of Consolidated Disposal Service, L.L.C. (f/k/a L.A. County, LLC), as
amended. |
|
|
|
3.395
|
|
Third Amended and Restated Operating Agreement of Consolidated Disposal Service, L.L.C. |
|
|
|
3.396
|
|
Certificate of Formation of Continental Waste Industries, L.L.C. (f/k/a Continental Waste
Industries, Inc.), as amended. |
|
|
|
3.397
|
|
Operating Agreement of Continental Waste Industries, L.L.C. |
|
|
|
3.398
|
|
Certificate of Incorporation of Copper Mountain Landfill, Inc. |
|
|
|
3.399
|
|
Bylaws of Copper Mountain Landfill, Inc. |
|
|
|
3.400
|
|
Articles of Incorporation of Corvallis Disposal Co., as amended. |
|
|
|
3.401
|
|
Amended and Restated Bylaws of Corvallis Disposal Co. |
|
|
|
3.402
|
|
Certificate of Incorporation of County Disposal (Ohio), Inc. |
|
|
|
3.403
|
|
Amended and Restated Bylaws of County Disposal (Ohio), Inc. |
|
|
|
3.404
|
|
Certificate of Incorporation of County Disposal, Inc., as amended. |
|
|
|
3.405
|
|
Amended and Restated Bylaws of County Disposal, Inc. |
|
|
|
3.406
|
|
Articles of Organization of County Environmental Landfill, LLC. |
|
|
|
3.407
|
|
Operating Agreement of County Environmental Landfill, LLC. |
|
|
|
3.408
|
|
Articles of Organization of County Land Development Landfill, LLC (f/k/a County Land Development
Sanitary Landfill, LLC), as amended. |
|
|
|
3.409
|
|
Operating Agreement of County Land Development Landfill, LLC (f/k/a County Land Development
Sanitary Landfill, LLC). |
|
|
|
3.410
|
|
Certificate of Incorporation of County Landfill, Inc. |
|
|
|
3.411
|
|
Amended and Restated Bylaws of County Landfill, Inc. |
|
|
|
3.412
|
|
Partnership Agreement of County Line Landfill Partnership, as amended. |
|
|
|
3.413
|
|
Certificate of Formation of Courtney Ridge Landfill, LLC. |
|
|
|
3.414
|
|
Operating Agreement of Courtney Ridge Landfill, LLC. |
|
|
|
3.415
|
|
Articles of Organization of Crescent Acres Landfill, LLC. |
|
|
|
3.416
|
|
Operating Agreement of Crescent Acres Landfill, LLC. |
|
|
|
3.417
|
|
Articles of Incorporation of Crockett Sanitary Service, Inc. (f/k/a Crockett Garbage Service,
Inc.), as amended. |
II-177
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.418
|
|
Second Amended and Restated Bylaws of Crockett Sanitary Service, Inc. |
|
|
|
3.419
|
|
Certificate of Limited Partnership of Crow Landfill TX, L.P. |
|
|
|
3.420
|
|
Agreement of Limited Partnership of Crow Landfill TX, L.P., as amended. |
|
|
|
3.421
|
|
Articles of Organization of Cumberland County Development Company, LLC (f/k/a Charlotte County
Development Company, LLC). |
|
|
|
3.422
|
|
Operating Agreement of Cumberland County Development Company, LLC (f/k/a Charlotte County
Development Company, LLC). |
|
|
|
3.423
|
|
Articles of Incorporation of CWI of Illinois, Inc. (f/k/a Continental Waste Industries of
Illinois, Inc., f/k/a Continental Waste Industries Venture, Inc., f/k/a Continential Wast
Industries Venture, Inc.), as amended. |
|
|
|
3.424
|
|
Amended and Restated Bylaws of CWI of Illinois, Inc. |
|
|
|
3.425
|
|
Articles of Incorporation of CWI of Missouri, Inc. (f/k/a Tutor Jr. Refuse Service, Inc.), as
amended. |
|
|
|
3.426
|
|
Amended and Restated Bylaws of CWI of Missouri, Inc. |
|
|
|
3.427
|
|
Certificate of Formation of D & L Disposal, L.L.C. |
|
|
|
3.428
|
|
Amended and Restated Operating Agreement of D & L Disposal, L.L.C. |
|
|
|
3.429
|
|
Articles of Incorporation of Dallas Disposal Co. (f/k/a Dallas Garbage Disposal Co., f/k/a Kelman
Garbage Disposal Company), as amended. |
|
|
|
3.430
|
|
Amended and Restated Bylaws of Dallas Disposal Co. |
|
|
|
3.431
|
|
Articles of Incorporation of Delta Container Corporation. |
|
|
|
3.432
|
|
Bylaws of Delta Container Corporation. |
|
|
|
3.433
|
|
Articles of Incorporation of Delta Dade Recycling Corp. |
|
|
|
3.434
|
|
Amended and Restated Bylaws of Delta Dade Recycling Corp. |
|
|
|
3.435
|
|
Articles of Incorporation of Delta Paper Stock, Co. |
|
|
|
3.436
|
|
Bylaws of Delta Paper Stock, Co. |
|
|
|
3.437
|
|
Articles of Incorporation of Delta Resources Corp. |
|
|
|
3.438
|
|
Amended and Restated Bylaws of Delta Resources Corp. |
|
|
|
3.439
|
|
Articles of Incorporation of Delta Site Development Corp. |
|
|
|
3.440
|
|
Amended and Restated Bylaws of Delta Site Development Corp. |
|
|
|
3.441
|
|
Articles of Incorporation of Delta Waste Corp. |
|
|
|
3.442
|
|
Amended and Restated Bylaws of Delta Waste Corp. |
|
|
|
3.443
|
|
Articles of Incorporation of Dempsey Waste Systems II, Inc. |
|
|
|
3.444
|
|
Bylaws of Dempsey Waste Systems II, Inc. |
|
|
|
3.445
|
|
Articles of Incorporation of Denver RL North, Inc. |
|
|
|
3.446
|
|
Bylaws of Denver RL North, Inc. |
|
|
|
3.447
|
|
Certificate of Limited Partnership of Desarrollo del Rancho La Gloria TX, LP (f/k/a Donna
Development Co. TX, LP), as amended. |
|
|
|
3.448
|
|
Agreement of Limited Partnership of Desarrollo del Rancho La Gloria TX, LP (f/k/a Donna
Development Co. TX, LP). |
|
|
|
3.449
|
|
Articles of Incorporation of Dinverno, Inc., as amended. |
II-178
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.450
|
|
Amended and Restated Bylaws of Dinverno, Inc. |
|
|
|
3.451
|
|
Articles of Incorporation of DTC Management, Inc. |
|
|
|
3.452
|
|
Amended and Restated Bylaws of DTC Management, Inc. |
|
|
|
3.453
|
|
Certificate of Formation of E Leasing Company, LLC, as amended. |
|
|
|
3.454
|
|
Limited Liability Company Agreement of E Leasing Company, LLC, as amended. |
|
|
|
3.455
|
|
Articles of Incorporation of Eagle Industries Leasing, Inc. |
|
|
|
3.456
|
|
Amended and Restated Bylaws of Eagle Industries Leasing, Inc., as amended. |
|
|
|
3.457
|
|
Certificate of Incorporation of East Chicago Compost Facility, Inc. |
|
|
|
3.458
|
|
Bylaws of East Chicago Compost Facility, Inc. |
|
|
|
3.459
|
|
Certificate of Incorporation of ECDC Environmental of Humboldt County, Inc. |
|
|
|
3.460
|
|
Bylaws of ECDC Environmental of Humboldt County, Inc. |
|
|
|
3.461
|
|
Articles of Organization of ECDC Environmental, L.C. (f/k/a ECDFP, L.C.), as amended. |
|
|
|
3.462
|
|
Amended and Restated Operating Agreement of ECDC Environmental, L.C. |
|
|
|
3.463
|
|
Certificate of Incorporation of ECDC Holdings, Inc. |
|
|
|
3.464
|
|
Bylaws of ECDC Holdings, Inc. |
|
|
|
3.465
|
|
Certificate of Limited Partnership of El Centro Landfill, L.P., as amended. |
|
|
|
3.466
|
|
Amended and Restated Partnership Agreement of El Centro Landfill, L.P., as amended. |
|
|
|
3.467
|
|
Articles of Incorporation of Elder Creek Transfer & Recovery, Inc. |
|
|
|
3.468
|
|
Bylaws of Elder Creek Transfer & Recovery, Inc. |
|
|
|
3.469
|
|
Certificate of Limited Partnership of Ellis County Landfill TX, LP, as amended. |
|
|
|
3.470
|
|
Agreement of Limited Partnership of Ellis County Landfill TX, LP, as amended. |
|
|
|
3.471
|
|
Certificate of Formation of Ellis Scott Landfill MO, LLC. |
|
|
|
3.472
|
|
Operating Agreement of Ellis Scott Landfill MO, LLC. |
|
|
|
3.473
|
|
Articles of Incorporation of Envirocycle, Inc. |
|
|
|
3.474
|
|
Amended and Restated Bylaws of Envirocycle, Inc. |
|
|
|
3.475
|
|
Certificate of Incorporation of Environmental Development Corp., as amended. |
|
|
|
3.476
|
|
Amended and Restated Bylaws of Environmental Development Corp. |
|
|
|
3.477
|
|
Articles of Incorporation of Environmental Reclamation Company, as amended. |
|
|
|
3.478
|
|
Amended and Restated Bylaws of Environmental Reclamation Company, as amended. |
|
|
|
3.479
|
|
Certificate of Incorporation of EnvironTech, Inc. |
|
|
|
3.480
|
|
Amended and Restated Bylaws of EnvironTech, Inc. |
|
|
|
3.481
|
|
Certificate of Formation of Envotech-Illinois L.L.C. |
|
|
|
3.482
|
|
Amended and Restated Operating Agreement of Envotech-Illinois L.L.C. |
|
|
|
3.483
|
|
Certificate of Incorporation of Evergreen Scavenger Service, Inc. (f/k/a Evergreen Scavenger
Services, Inc., f/k/a Workman Services, Inc.), as amended. |
|
|
|
3.484
|
|
Amended and Restated Bylaws of Evergreen Scavenger Service, Inc. |
|
|
|
3.485
|
|
Certificate of Formation of Evergreen Scavenger Service, L.L.C., as amended. |
II-179
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.486
|
|
Amended and Restated Operating Agreement of Evergreen Scavenger Service, L.L.C. |
|
|
|
3.487
|
|
Articles of Organization of F.P. McNamara Rubbish Removal Inc. |
|
|
|
3.488
|
|
Amended and Restated Bylaws of F.P. McNamara Rubbish Removal Inc. |
|
|
|
3.489
|
|
Articles of Organization of Flint Hill Road, LLC. |
|
|
|
3.490
|
|
Operating Agreement of Flint Hill Road, LLC. |
|
|
|
3.491
|
|
Articles of Incorporation of FLL, Inc. (f/k/a KCL & K M, Inc.), as amended. |
|
|
|
3.492
|
|
Amended and Restated Bylaws of FLL, Inc. |
|
|
|
3.493
|
|
Certificate of Formation of Forest View Landfill, LLC. |
|
|
|
3.494
|
|
Operating Agreement of Forest View Landfill, LLC. |
|
|
|
3.495
|
|
Certificate of Limited Partnership of Fort Worth Landfill TX, LP. |
|
|
|
3.496
|
|
Agreement of Limited Partnership of Fort Worth Landfill TX, LP, as amended. |
|
|
|
3.497
|
|
Articles of Incorporation of Forward, Inc. |
|
|
|
3.498
|
|
Amended and Restated Bylaws of Forward, Inc. |
|
|
|
3.499
|
|
Articles of Incorporation of Fred Barbara Trucking Co., Inc. |
|
|
|
3.500
|
|
Amended and Restated Bylaws of Fred Barbara Trucking Co., Inc. |
|
|
|
3.501
|
|
Articles of Organization of Frontier Waste Services (Colorado), LLC, as amended. |
|
|
|
3.502
|
|
Operating Agreement of Frontier Waste Services (Colorado), LLC. |
|
|
|
3.503
|
|
Amended and Restated Articles of Organization of Frontier Waste Services (Utah), LLC. |
|
|
|
3.504
|
|
Operating Agreement of Frontier Waste Services (Utah), LLC. |
|
|
|
3.505
|
|
Articles of Organization of Frontier Waste Services of Louisiana L.L.C. |
|
|
|
3.506
|
|
Operating Agreement of Frontier Waste Services of Louisiana L.L.C. |
|
|
|
3.507
|
|
Certificate of Limited Partnership of Frontier Waste Services, L.P. (f/k/a Frontier Disposal,
L.P.), as amended. |
|
|
|
3.508
|
|
Amended and Restated Agreement of Limited Partnership of Frontier Waste Services, L.P. |
|
|
|
3.509
|
|
Articles of Incorporation of G. Van Dyken Disposal Inc. |
|
|
|
3.510
|
|
Bylaws of G. Van Dyken Disposal Inc. |
|
|
|
3.511
|
|
Certificate of Limited Partnership of Galveston County Landfill TX, LP. |
|
|
|
3.512
|
|
Agreement of Limited Partnership of Galveston County Landfill TX, LP, as amended. |
|
|
|
3.513
|
|
Articles of Organization of Gateway Landfill, LLC, as amended. |
|
|
|
3.514
|
|
Amended and Restated Operating Agreement of Gateway Landfill, LLC. |
|
|
|
3.515
|
|
Articles of Incorporation of GEK, Inc., as amended. |
|
|
|
3.516
|
|
Amended and Restated Bylaws of GEK, Inc. |
|
|
|
3.517
|
|
Certificate of Incorporation of General Refuse Rolloff Corp. |
|
|
|
3.518
|
|
Amended and Restated Bylaws of General Refuse Rolloff Corp. |
|
|
|
3.519
|
|
Articles of Organization of General Refuse Service of Ohio, L.L.C., as amended. |
|
|
|
3.520
|
|
Amended and Restated Operating Agreement of General Refuse Service of Ohio, L.L.C. |
|
|
|
3.521
|
|
Certificate of Incorporation of Georgia Recycling Services, Inc. |
II-180
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.522
|
|
Amended and Restated Bylaws of Georgia Recycling Services, Inc. |
|
|
|
3.523
|
|
Certificate of Limited Partnership of Giles Road Landfill TX, LP. |
|
|
|
3.524
|
|
Agreement of Limited Partnership of Giles Road Landfill TX, LP. |
|
|
|
3.525
|
|
Articles of Incorporation of Golden Bear Transfer Services, Inc. |
|
|
|
3.526
|
|
Amended and Restated Bylaws of Golden Bear Transfer Services, Inc. |
|
|
|
3.527
|
|
Certificate of Limited Partnership of Golden Triangle Landfill TX, LP. |
|
|
|
3.528
|
|
Agreement of Limited Partnership of Golden Triangle Landfill TX, LP, as amended. |
|
|
|
3.529
|
|
Articles of Incorporation of Golden Waste Disposal, Inc. |
|
|
|
3.530
|
|
Bylaws of Golden Waste Disposal, Inc. |
|
|
|
3.531
|
|
Articles of Incorporation of Grants Pass Sanitation, Inc., as amended. |
|
|
|
3.532
|
|
Amended and Restated Bylaws of Grants Pass Sanitation, Inc. |
|
|
|
3.533
|
|
Certificate of Incorporation of Great Lakes Disposal Service, Inc. |
|
|
|
3.534
|
|
Amended and Restated Bylaws of Great Lakes Disposal Service, Inc. |
|
|
|
3.535
|
|
Certificate of Formation of Great Plains Landfill OK, LLC. |
|
|
|
3.536
|
|
Operating Agreement of Great Plains Landfill OK, LLC. |
|
|
|
3.537
|
|
Partnership Agreement of Green Valley Landfill General Partnership. |
|
|
|
3.538
|
|
Certificate of Organization of Greenridge Reclamation, LLC. |
|
|
|
3.539
|
|
Operating Agreement of Greenridge Reclamation, LLC. |
|
|
|
3.540
|
|
Certificate of Organization of Greenridge Waste Services, LLC. |
|
|
|
3.541
|
|
Operating Agreement of Greenridge Waste Services, LLC. |
|
|
|
3.542
|
|
Certificate of Limited Partnership of Greenwood Landfill TX, LP. |
|
|
|
3.543
|
|
Agreement of Limited Partnership of Greenwood Landfill TX, LP. |
|
|
|
3.544
|
|
Certificate of Limited Partnership of Gulf West Landfill TX, LP. |
|
|
|
3.545
|
|
Agreement of Limited Partnership of Gulf West Landfill TX, LP, as amended. |
|
|
|
3.546
|
|
Articles of Incorporation of Gulfcoast Waste Service, Inc. |
|
|
|
3.547
|
|
Amended and Restated Bylaws of Gulfcoast Waste Service, Inc. |
|
|
|
3.548
|
|
Certificate of Formation of H Leasing Company, LLC, as amended. |
|
|
|
3.549
|
|
Limited Liability Company Agreement of H Leasing Company, LLC, as amended. |
|
|
|
3.550
|
|
Certificate of Formation of Hancock County Development Company, LLC. |
|
|
|
3.551
|
|
Operating Agreement of Hancock County Development Company, LLC. |
|
|
|
3.552
|
|
Articles of Incorporation of Harlands Sanitary Landfill, Inc. (f/k/a Whites Sanitary Landfill,
Inc., f/k/a Whites Trucking & Sanitary Landfill, Inc.), as amended. |
|
|
|
3.553
|
|
Bylaws of Harlands Sanitary Landfill, Inc. |
|
|
|
3.554
|
|
Certificate of Formation of Harrison County Landfill, LLC. |
|
|
|
3.555
|
|
Operating Agreement of Harrison County Landfill, LLC. |
|
|
|
3.556
|
|
Articles of Incorporation of Honeygo Run Reclamation Center, Inc., as amended. |
|
|
|
3.557
|
|
Amended and Restated Bylaws of Honeygo Run Reclamation Center, Inc. |
II-181
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.558
|
|
Partnership Agreement of Illiana Disposal Partnership, as amended. |
|
|
|
3.559
|
|
Articles of Incorporation of Illinois Landfill, Inc. |
|
|
|
3.560
|
|
Bylaws of Illinois Landfill, Inc. |
|
|
|
3.561
|
|
Articles of Incorporation of Illinois Recycling Services, Inc. |
|
|
|
3.562
|
|
Amended and Restated Bylaws of Illinois Recycling Services, Inc. |
|
|
|
3.563
|
|
Articles of Incorporation of Illinois Valley Recycling, Inc., as amended. |
|
|
|
3.564
|
|
Amended and Restated Bylaws of Illinois Valley Recycling, Inc. |
|
|
|
3.565
|
|
Articles of Incorporation of Imperial Landfill, Inc. |
|
|
|
3.566
|
|
Bylaws of Imperial Landfill, Inc. |
|
|
|
3.567
|
|
Articles of Incorporation of Independent Trucking Company (f/k/a Independent Trucking), as amended. |
|
|
|
3.568
|
|
Bylaws of Independent Trucking Company. |
|
|
|
3.569
|
|
Articles of Incorporation of Ingrum Waste Disposal, Inc. |
|
|
|
3.570
|
|
Amended and Restated Bylaws of Ingrum Waste Disposal, Inc. |
|
|
|
3.571
|
|
Articles of Incorporation of International Disposal Corp. of California. |
|
|
|
3.572
|
|
Amended and Restated Bylaws of International Disposal Corp. of California. |
|
|
|
3.573
|
|
Certificate of Incorporation of Island Waste Services Ltd. (f/k/a Selas Enterprises Ltd.), as
amended. |
|
|
|
3.574
|
|
Bylaws of Island Waste Services Ltd. (f/k/a Selas Enterprises Ltd.). |
|
|
|
3.575
|
|
Certificate of Limited Partnership of Itasca Landfill TX, LP. |
|
|
|
3.576
|
|
Agreement of Limited Partnership of Itasca Landfill TX, LP, as amended. |
|
|
|
3.577
|
|
Certificate of Formation of Jackson County Landfill, LLC, as amended. |
|
|
|
3.578
|
|
Operating Agreement of Jackson County Landfill, LLC. |
|
|
|
3.579
|
|
Partnership Agreement of Jasper County Development Company Partnership. |
|
|
|
3.580
|
|
Certificate of Formation of Jefferson City Landfill, LLC. |
|
|
|
3.581
|
|
Operating Agreement of Jefferson City Landfill, LLC. |
|
|
|
3.582
|
|
Articles of Organization of Jefferson Parish Development Company, LLC. |
|
|
|
3.583
|
|
Operating Agreement of Jefferson Parish Development Company, LLC. |
|
|
|
3.584
|
|
Articles of Incorporation of Jetter Disposal, Inc., as amended. |
|
|
|
3.585
|
|
Amended and Restated Bylaws of Jetter Disposal, Inc. |
|
|
|
3.586
|
|
Certificate of Formation of Kandel Enterprises, LLC, as amended. |
|
|
|
3.587
|
|
Amended and Restated Operating Agreement of Kandel Enterprises, LLC. |
|
|
|
3.588
|
|
Articles of Incorporation of Kankakee Quarry, Inc. |
|
|
|
3.589
|
|
Bylaws of Kankakee Quarry, Inc. |
|
|
|
3.590
|
|
Articles of Incorporation of Keller Canyon Landfill Company. |
|
|
|
3.591
|
|
Amended and Restated Bylaws of Keller Canyon Landfill Company. |
|
|
|
3.592
|
|
Articles of Incorporation of Keller Drop Box, Inc., as amended. |
|
|
|
3.593
|
|
Amended and Restated Bylaws of Keller Drop Box, Inc. |
II-182
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.594
|
|
Certificate of Limited Partnership of Kerrville Landfill TX, LP. |
|
|
|
3.595
|
|
Agreement of Limited Partnership of Kerrville Landfill TX, LP, as amended. |
|
|
|
3.596
|
|
Partnership Agreement of Key Waste Indiana Partnership, as amended. |
|
|
|
3.597
|
|
Articles of Incorporation of La Cañada Disposal Company, Inc. (f/k/a La Cañada Disposal, Inc.), as
amended. |
|
|
|
3.598
|
|
Amended and Restated Bylaws of La Cañada Disposal Company, Inc. |
|
|
|
3.599
|
|
Partnership Agreement of Lake County C & D Development Partnership. |
|
|
|
3.600
|
|
Articles of Incorporation of Lake Norman Landfill, Inc. |
|
|
|
3.601
|
|
Amended and Restated Bylaws of Lake Norman Landfill, Inc. |
|
|
|
3.602
|
|
Articles of Incorporation of LandComp Corporation. |
|
|
|
3.603
|
|
Amended and Restated Bylaws of LandComp Corporation. |
|
|
|
3.604
|
|
Articles of Incorporation of Lathrop Sunrise Sanitation Corporation. |
|
|
|
3.605
|
|
Amended and Restated Bylaws of Lathrop Sunrise Sanitation Corporation. |
|
|
|
3.606
|
|
Certificate of Formation of Lee County Landfill SC, LLC. |
|
|
|
3.607
|
|
Operating Agreement of Lee County Landfill SC, LLC. |
|
|
|
3.608
|
|
Articles of Incorporation of Lee County Landfill, Inc. |
|
|
|
3.609
|
|
Bylaws of Lee County Landfill, Inc. |
|
|
|
3.610
|
|
Certificate of Formation of Lemons Landfill, LLC. |
|
|
|
3.611
|
|
Operating Agreement of Lemons Landfill, LLC. |
|
|
|
3.612
|
|
Certificate of Limited Partnership of Lewisville Landfill TX, LP. |
|
|
|
3.613
|
|
Agreement of Limited Partnership of Lewisville Landfill TX, LP, as amended. |
|
|
|
3.614
|
|
Certificate of Incorporation of Liberty Waste Holdings, Inc. |
|
|
|
3.615
|
|
Amended and Restated Bylaws of Liberty Waste Holdings, Inc. |
|
|
|
3.616
|
|
Certificate of Formation of Liberty Waste Services Limited, L.L.C., as amended. |
|
|
|
3.617
|
|
Second Amended and Restated Limited Liability Company Agreement of Liberty Waste Services Limited,
L.L.C. |
|
|
|
3.618
|
|
Articles of Organization of Liberty Waste Services of Illinois, L.L.C., as amended. |
|
|
|
3.619
|
|
Amended and Restated Operating Agreement of Liberty Waste Services of Illinois, L.L.C. |
|
|
|
3.620
|
|
Certificate of Formation of Liberty Waste Services of McCook, L.L.C. (f/k/a West Suburban
Recycling & Energy Center, L.L.C., f/k/a West Suburban Resources & Energy Center, L.L.C.), as
amended. |
|
|
|
3.621
|
|
Amended and Restated Operating Agreement of Liberty Waste Services of McCook, L.L.C. |
|
|
|
3.622
|
|
Certificate of Formation of Little Creek Landing, LLC. |
|
|
|
3.623
|
|
Operating Agreement of Little Creek Landing, LLC. |
|
|
|
3.624
|
|
Certificate of Formation of Local Sanitation of Rowan County, L.L.C. |
|
|
|
3.625
|
|
Limited Liability Company Agreement of Local Sanitation of Rowan County, L.L.C. |
|
|
|
3.626
|
|
Articles of Incorporation of Loop Recycling, Inc., as amended. |
|
|
|
3.627
|
|
Amended and Restated Bylaws of Loop Recycling, Inc. |
II-183
|
|
|
Exhibit |
|
|
Number |
|
Description |
3.628
|
|
Articles of Incorporation of Loop Transfer, Incorporated, as amended. |
|
|
|
3.629
|
|
Amended and Restated Bylaws of Loop Transfer, Incorporated. |
|
|
|
3.630
|
|
Articles of Organization of Lorain County Landfill, LLC. |
|
|
|
3.631
|
|
Operating Agreement of Lorain County Landfill, LLC. |
|
|
|
3.632
|
|
Certificate of Incorporation of Louis Pinto & Son, Inc., Sanitation Contractors. |
|
|
|
3.633
|
|
Amended and Restated Bylaws of Louis Pinto & Son, Inc., Sanitation Contractors. |
|
|
|
3.634
|
|
Certificate of Incorporation of Lucas County Land Development, Inc. (f/k/a Macomb Landfill, Inc.),
as amended. |
|
|
|
3.635
|
|
Bylaws of Lucas County Land Development, Inc. (f/k/a Macomb Landfill, Inc.). |
|
|
|
3.636
|
|
Articles of Organization of Lucas County Landfill, LLC. |
|
|
|
3.637
|
|
Operating Agreement of Lucas County Landfill, LLC. |
|
|
|
3.638
|
|
Articles of Organization of Madison County Development, LLC (f/k/a Wilson County Development,
LLC), as amended. |
|
|
|
3.639
|
|
Operating Agreement of Madison County Development, LLC (f/k/a Wilson County Development, LLC), as
amended. |
|
|
|
3.640
|
|
Articles of Incorporation of Manumit of Florida, Inc. |
|
|
|
* 3.641
|
|
Amended and Restated Bylaws of Manumit of Florida, Inc. |
|
|
|
* 3.642
|
|
Certificate of Limited Partnership of Mars Road TX, LP. |
|
|
|
* 3.643
|
|
Agreement of Limited Partnership of Mars Road TX, LP. |
|
|
|
* 3.644
|
|
Certificate of Limited Partnership of McCarty Road Landfill TX, LP. |
|
|
|
* 3.645
|
|
Agreement of Limited Partnership of McCarty Road Landfill TX, LP, as amended. |
|
|
|
* 3.646
|
|
Articles of Incorporation of McCusker Recycling, Inc. |
|
|
|
* 3.647
|
|
Second Amended and Restated Bylaws of McCusker Recycling, Inc. |
|
|
|
* 3.648
|
|
Articles of Incorporation of McInnis Waste Systems, Inc. |
|
|
|
* 3.649
|
|
Amended and Restated Bylaws of McInnis Waste Systems, Inc. |
|
|
|
* 3.650
|
|
Articles of Organization of Menands Environmental Solutions, LLC. |
|
|
|
* 3.651
|
|
Operating Agreement of Menands Environmental Solutions, LLC. |
|
|
|
* 3.652
|
|
Articles of Incorporation of Mesa Disposal, Inc. (f/k/a Bullhead City Investors, Inc.), as amended. |
|
|
|
* 3.653
|
|
Amended and Restated Bylaws of Mesa Disposal, Inc. |
|
|
|
* 3.654
|
|
Certificate of Limited Partnership of Mesquite Landfill TX, LP. |
|
|
|
* 3.655
|
|
Agreement of Limited Partnership of Mesquite Landfill TX, LP, as amended. |
|
|
|
* 3.656
|
|
Certificate of Limited Partnership of Mexia Landfill TX, LP. |
|
|
|
* 3.657
|
|
Agreement of Limited Partnership of Mexia Landfill TX, LP, as amended. |
|
|
|
* 3.658
|
|
Articles of Incorporation of Midway Development Company, Inc. |
|
|
|
* 3.659
|
|
Bylaws of Midway Development Company, Inc. |
|
|
|
* 3.660
|
|
Articles of Incorporation of Mississippi Waste Paper Company. |
|
|
|
* 3.661
|
|
Amended and Restated Bylaws of Mississippi Waste Paper Company. |
|
|
|
* 3.662
|
|
Articles of Organization of Missouri City Landfill, LLC. |
II-184
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.663
|
|
Operating Agreement of Missouri City Landfill, LLC. |
|
|
|
* 3.664
|
|
Amended and Restated Partnership Agreement of Morehead Landfill General Partnership. |
|
|
|
* 3.665
|
|
Certificate of Incorporation of Mountain Home Disposal, Inc. (f/k/a Waste Connections of Idaho,
Inc.), as amended. |
|
|
|
* 3.666
|
|
Amended and Restated Bylaws of Mountain Home Disposal, Inc. (f/k/a Waste Connections of Idaho,
Inc.). |
|
|
|
* 3.667
|
|
Certificate of Formation of N Leasing Company, LLC, as amended. |
|
|
|
* 3.668
|
|
Limited Liability Company Agreement of N Leasing Company, LLC, as amended. |
|
|
|
* 3.669
|
|
Articles of Incorporation of NationsWaste Catawba Regional Landfill, Inc. |
|
|
|
* 3.670
|
|
Amended and Restated Bylaws of NationsWaste Catawba Regional Landfill, Inc. |
|
|
|
* 3.671
|
|
Certificate of Incorporation of NationsWaste, Inc. |
|
|
|
* 3.672
|
|
Bylaws of NationsWaste, Inc. |
|
|
|
* 3.673
|
|
Certificate of Incorporation of Ncorp, Inc. |
|
|
|
* 3.674
|
|
Amended and Restated Bylaws of Ncorp, Inc. |
|
|
|
* 3.675
|
|
Articles of Incorporation of New Morgan Landfill Company, Inc. |
|
|
|
* 3.676
|
|
Amended and Restated Bylaws of New Morgan Landfill Company, Inc. |
|
|
|
* 3.677
|
|
Certificate of Formation of New York Waste Services, LLC. |
|
|
|
* 3.678
|
|
Operating Agreement of New York Waste Services, LLC. |
|
|
|
* 3.679
|
|
Certificate of Incorporation of Newco Waste Systems of New Jersey, Inc. |
|
|
|
* 3.680
|
|
Amended and Restated Bylaws of Newco Waste Systems of New Jersey, Inc. |
|
|
|
* 3.681
|
|
Partnership Agreement of Newton County Landfill Partnership, as amended. |
|
|
|
* 3.682
|
|
Articles of Incorporation of Noble Road Landfill, Inc. |
|
|
|
* 3.683
|
|
Amended and Restated Bylaws of Noble Road Landfill, Inc. |
|
|
|
* 3.684
|
|
Certificate of Formation of Northeast Landfill, LLC. |
|
|
|
* 3.685
|
|
Operating Agreement of Northeast Landfill, LLC. |
|
|
|
* 3.686
|
|
Articles of Incorporation of Northlake Transfer, Inc. |
|
|
|
* 3.687
|
|
Bylaws of Northlake Transfer, Inc. |
|
|
|
* 3.688
|
|
Charter of Northwest Tennessee Disposal Corporation. |
|
|
|
* 3.689
|
|
Second Amended and Restated Bylaws of Tennessee Disposal Corporation. |
|
|
|
* 3.690
|
|
Articles of Incorporation of Oakland Heights Development, Inc. (f/k/a Wayne Disposal-Oakland,
Inc.), as amended. |
|
|
|
* 3.691
|
|
Amended and Restated Bylaws of Oakland Heights Development, Inc. (f/k/a Wayne Disposal-Oakland,
Inc.). |
|
|
|
* 3.692
|
|
Articles of Organization of Obscurity Land Development, LLC. |
|
|
|
* 3.693
|
|
Operating Agreement of Obscurity Land Development, LLC. |
|
|
|
* 3.694
|
|
Amended and Restated Joint Venture Agreement of Oceanside Waste & Recycling Services. |
|
|
|
* 3.695
|
|
Certificate of Incorporation of Ohio Republic Contracts, II, Inc. |
|
|
|
* 3.696
|
|
Amended and Restated Bylaws of Ohio Republic Contracts, II, Inc. |
II-185
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.697
|
|
Articles of Incorporation of Ohio Republic Contracts, Inc. |
|
|
|
* 3.698
|
|
Amended and Restated Bylaws of Ohio Republic Contracts, Inc. |
|
|
|
* 3.699
|
|
Articles of Organization of Oklahoma City Landfill, L.L.C. |
|
|
|
* 3.700
|
|
Operating Agreement of Oklahoma City Landfill, L.L.C. |
|
|
|
* 3.701
|
|
Articles of Incorporation for Oscars Collection System of Fremont, Inc. |
|
|
|
* 3.702
|
|
Bylaws of Oscars Collection System of Fremont, Inc. |
|
|
|
* 3.703
|
|
Articles of Incorporation of Otay Landfill, Inc. |
|
|
|
* 3.704
|
|
Amended and Restated Bylaws of Otay Landfill, Inc. |
|
|
|
* 3.705
|
|
Certificate of Incorporation of Ottawa County Landfill, Inc. (f/k/a Laidlaw Waste Systems
(Michigan) Inc., f/k/a Laidlaw Waste Systems (Pennsylvania) Inc., f/k/a Epping Sanitary Landfill,
Inc.), as amended. |
|
|
|
* 3.706
|
|
Bylaws of Ottawa County Landfill, Inc. (f/k/a Laidlaw Waste Systems (Michigan) Inc., f/k/a Laidlaw
Waste Systems (Pennsylvania) Inc., f/k/a Epping Sanitary Landfill, Inc.). |
|
|
|
* 3.707
|
|
Certificate of Formation of Packerton Land Company, L.L.C., as amended. |
|
|
|
* 3.708
|
|
Amended and Restated Operating Agreement of Packerton Land Company, L.L.C. |
|
|
|
* 3.709
|
|
Articles of Incorporation of Palomar Transfer Station, Inc. |
|
|
|
* 3.710
|
|
Bylaws of Palomar Transfer Station, Inc. |
|
|
|
* 3.711
|
|
Certificate of Limited Partnership of Panama Road Landfill, TX, L.P. |
|
|
|
* 3.712
|
|
Agreement of Limited Partnership of Panama Road Landfill, TX, L.P. |
|
|
|
* 3.713
|
|
Articles of Incorporation of Peltier Real Estate Company, as amended. |
|
|
|
* 3.714
|
|
Amended and Restated Bylaws of Peltier Real Estate Company. |
|
|
|
* 3.715
|
|
Restated Articles of Incorporation of Perdomo and Sons, Inc. |
|
|
|
* 3.716
|
|
Second Amended and Restated Bylaws of Perdomo and Sons, Inc. |
|
|
|
* 3.717
|
|
Articles of Incorporation of Pinal County Landfill Corp. |
|
|
|
* 3.718
|
|
Bylaws of Pinal County Landfill Corp. |
|
|
|
* 3.719
|
|
Certificate of Limited Partnership of Pine Hill Farms Landfill TX, LP (f/k/a Pinehill Landfill TX,
LP), as amended. |
|
|
|
* 3.720
|
|
Agreement of Limited Partnership of Pine Hill Farms Landfill TX, LP (f/k/a Pinehill Landfill TX,
LP), as amended. |
|
|
|
* 3.721
|
|
Certificate of Formation of Pinecrest Landfill OK, LLC. |
|
|
|
* 3.722
|
|
Operating Agreement of Pinecrest Landfill OK, LLC. |
|
|
|
* 3.723
|
|
Certificate of Incorporation of Pittsburg County Landfill, Inc. |
|
|
|
* 3.724
|
|
Amended and Restated Bylaws of Pittsburg County Landfill, Inc. |
|
|
|
* 3.725
|
|
Certificate of Limited Partnership of Pleasant Oaks Landfill TX, LP. |
|
|
|
* 3.726
|
|
Agreement of Limited Partnership of Pleasant Oaks Landfill TX, LP. |
|
|
|
* 3.727
|
|
Certificate of Formation of Polk County Landfill, LLC. |
|
|
|
* 3.728
|
|
Operating Agreement of Polk County Landfill, LLC. |
|
|
|
* 3.729
|
|
Articles of Incorporation of Port Clinton Landfill, Inc. |
II-186
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.730
|
|
Bylaws of Port Clinton Landfill, Inc. |
|
|
|
* 3.731
|
|
Articles of Incorporation of Portable Storage Co. (f/k/a United Septic Service, Inc.), as amended. |
|
|
|
* 3.732
|
|
Amended and Restated Bylaws of Portable Storage Co. |
|
|
|
* 3.733
|
|
Articles of Incorporation of Preble County Landfill, Inc. |
|
|
|
* 3.734
|
|
Bylaws of Preble County Landfill, Inc. |
|
|
|
* 3.735
|
|
Articles of Incorporation of Price & Sons Recycling Company, as amended. |
|
|
|
* 3.736
|
|
Amended and Restated Bylaws of Price & Sons Recycling Company. |
|
|
|
* 3.737
|
|
Articles of Organization of Prince Georges County Landfill, LLC. |
|
|
|
* 3.738
|
|
Operating Agreement of Prince Georges County Landfill, LLC. |
|
|
|
* 3.739
|
|
Articles of Incorporation of R.C. Miller Enterprises, Inc. |
|
|
|
* 3.740
|
|
Amended and Restated Bylaws of R.C. Miller Enterprises, Inc. |
|
|
|
* 3.741
|
|
Articles of Incorporation of R.C. Miller Refuse Service Inc. |
|
|
|
* 3.742
|
|
Amended and Restated Bylaws of R.C. Miller Refuse Service Inc. |
|
|
|
* 3.743
|
|
Partnership Agreement of Rabanco Companies, as amended. |
|
|
|
* 3.744
|
|
Articles of Incorporation of Rabanco Recycling, Inc. (f/k/a Rabanco Acquisition Company Two), as
amended. |
|
|
|
* 3.745
|
|
Bylaws of Rabanco Recycling, Inc. (f/k/a Rabanco Acquisition Company Two). |
|
|
|
* 3.746
|
|
Articles of Incorporation of Rabanco, Ltd. (f/k/a Rabanco Acquisition Company), as amended. |
|
|
|
* 3.747
|
|
Bylaws of Rabanco, Ltd. (f/k/a Rabanco Acquisition Company). |
|
|
|
* 3.748
|
|
Articles of Incorporation of Ramona Landfill, Inc. |
|
|
|
* 3.749
|
|
Bylaws of Ramona Landfill, Inc. |
|
|
|
* 3.750
|
|
Articles of Incorporation of RCS, Inc. |
|
|
|
* 3.751
|
|
Bylaws of RCS, Inc. |
|
|
|
* 3.752
|
|
Articles of Incorporation of Reliable Disposal, Inc. (f/k/a Sulo & Company)., as amended. |
|
|
|
* 3.753
|
|
Amended and Restated Bylaws of Reliable Disposal, Inc. |
|
|
|
* 3.754
|
|
Articles of Incorporation of Republic Dumpco, Inc. |
|
|
|
* 3.755
|
|
Amended and Restated Bylaws of Republic Dumpco, Inc. |
|
|
|
* 3.756
|
|
Articles of Incorporation of Republic Environmental Technologies, Inc. (f/k/a RI/ETON Acquisition
Corp.), as amended. |
|
|
|
* 3.757
|
|
Amended and Restated Bylaws of Republic Environmental Technologies, Inc. |
|
|
|
* 3.758
|
|
Articles of Organization of Republic Ohio Contracts, LLC, as amended. |
|
|
|
* 3.759
|
|
Second Amended and Restated Operating Agreement of Republic Ohio Contracts, LLC. |
|
|
|
* 3.760
|
|
Articles of Incorporation of Republic Services Aviation, Inc. |
|
|
|
* 3.761
|
|
Amended and Restated Bylaws of Republic Services Aviation, Inc. |
|
|
|
* 3.762
|
|
Certificate of Incorporation of Republic Services Financial LP, Inc. |
|
|
|
* 3.763
|
|
Bylaws of Republic Services Financial LP, Inc. |
|
|
|
* 3.764
|
|
Certificate of Limited Partnership of Republic Services Financial, Limited Partnership. |
II-187
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.765
|
|
Limited Partnership Agreement of Republic Services Financial, Limited Partnership. |
|
|
|
* 3.766
|
|
Certificate of Formation of Republic Services Group, LLC (f/k/a RS/WM Holding Company, LLC), as
amended. |
|
|
|
* 3.767
|
|
Second Amended and Restated Operating Agreement of Republic Services Group, LLC. |
|
|
|
* 3.768
|
|
Certificate of Incorporation of Republic Services Holding Company, Inc. |
|
|
|
* 3.769
|
|
Amended and Restated Bylaws of Republic Services Holding Company, Inc. |
|
|
|
* 3.770
|
|
Articles of Organization of Republic Services of Arizona Hauling, LLC, as amended. |
|
|
|
* 3.771
|
|
Amended and Restated Operating Agreement of Arizona Hauling, LLC. |
|
|
|
* 3.772
|
|
Certificate of Incorporation of Republic Services of California Holding Company, Inc. |
|
|
|
* 3.773
|
|
Amended and Restated Bylaws of Republic Services of California Holding Company, Inc. |
|
|
|
* 3.774
|
|
Certificate of Formation of Republic Services of California II, LLC. |
|
|
|
* 3.775
|
|
Second Amended and Restated Operating Agreement of Republic Services of California II, LLC. |
|
|
|
* 3.776
|
|
Articles of Organization of Republic Services of Colorado Hauling, LLC, as amended. |
|
|
|
* 3.777
|
|
Third Amended and Restated Operating Agreement of Republic Services of Colorado Hauling, LLC. |
|
|
|
* 3.778
|
|
Articles of Organization of Republic Services of Colorado I, LLC, as amended. |
|
|
|
* 3.779
|
|
Third Amended and Restated Operating Agreement of Republic Services of Colorado I, LLC. |
|
|
|
* 3.780
|
|
Certificate of Incorporation of Republic Services of Florida GP, Inc. |
|
|
|
* 3.781
|
|
Amended and Restated Bylaws of Republic Services of Florida GP, Inc. |
|
|
|
* 3.782
|
|
Certificate of Incorporation of Republic Services of Florida LP, Inc. |
|
|
|
* 3.783
|
|
Amended and Restated Bylaws of Republic Services of Florida LP, Inc. |
|
|
|
* 3.784
|
|
Certificate of Limited Partnership of Republic Services of Florida, Limited Partnership, as
amended. |
|
|
|
* 3.785
|
|
Agreement of Limited Partnership of Republic Services of Florida, Limited Partnership. |
|
|
|
* 3.786
|
|
Certificate of Formation of Republic Services of Georgia GP, LLC (f/k/a Republic Services of
Georgia GP, Inc.). |
|
|
|
* 3.787
|
|
Operating Agreement of Republic Services of Georgia GP, LLC. |
|
|
|
* 3.788
|
|
Certificate of Formation of Republic Services of Georgia LP, LLC (f/k/a Republic Services of
Georgia LP, Inc.). |
|
|
|
* 3.789
|
|
Operating Agreement of Republic Services of Georgia LP, LLC. |
|
|
|
* 3.790
|
|
Certificate of Limited Partnership of Republic Services of Georgia, Limited Partnership, as
amended. |
|
|
|
* 3.791
|
|
Amended and Restated Agreement of Limited Partnership of Republic Services of Georgia, Limited
Partnership. |
|
|
|
* 3.792
|
|
Certificate of Incorporation of Republic Services of Indiana LP, Inc. |
|
|
|
* 3.793
|
|
Amended and Restated Bylaws of Republic Services of Indiana LP, Inc. |
|
|
|
* 3.794
|
|
Certificate of Formation of Republic Services of Indiana Transportation, LLC. |
|
|
|
* 3.795
|
|
Operating Agreement of Republic Services of Indiana Transportation, LLC. |
|
|
|
* 3.796
|
|
Certificate of Limited Partnership of Republic Services of Indiana, Limited Partnership. |
|
|
|
* 3.797
|
|
Agreement of Limited Partnership of Republic Services of Indiana, Limited Partnership. |
|
|
|
* 3.798
|
|
Articles of Organization of Republic Services of Kentucky, LLC, as amended. |
II-188
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.799
|
|
Operating Agreement of Republic Services of Kentucky, LLC. |
|
|
|
* 3.800
|
|
Articles of Organization of Republic Services of Michigan Hauling, LLC. |
|
|
|
* 3.801
|
|
Second Amended and Restated Operating Agreement of Michigan Hauling, LLC. |
|
|
|
* 3.802
|
|
Certificate of Incorporation of Republic Services of Michigan Holding Company, Inc. |
|
|
|
* 3.803
|
|
Amended and Restated Bylaws of Republic Services of Michigan Holding Company, Inc. |
|
|
|
* 3.804
|
|
Articles of Organization of Republic Services of Michigan I, LLC. |
|
|
|
* 3.805
|
|
Second Amended and Restated Operating Agreement of Republic Services of Michigan I, LLC. |
|
|
|
* 3.806
|
|
Articles of Organization of Republic Services of Michigan II, LLC. |
|
|
|
* 3.807
|
|
Second Amended and Restated Operating Agreement of Republic Services of Michigan II, LLC. |
|
|
|
* 3.808
|
|
Articles of Organization of Republic Services of Michigan III, LLC. |
|
|
|
* 3.809
|
|
Second Amended and Restated Operating Agreement of Republic Services of Michigan III, LLC. |
|
|
|
* 3.810
|
|
Articles of Organization of Republic Services of Michigan IV, LLC. |
|
|
|
* 3.811
|
|
Second Amended and Restated Operating Agreement of Republic Services of Michigan IV, LLC. |
|
|
|
* 3.812
|
|
Articles of Organization of Republic Services of Michigan V, LLC. |
|
|
|
* 3.813
|
|
Second Amended and Restated Operating Agreement of Republic Services of Michigan V, LLC. |
|
|
|
* 3.814
|
|
Certificate of Formation of Republic Services of New Jersey, LLC (f/k/a Republic Services of New
Jersey I, LLC), as amended. |
|
|
|
* 3.815
|
|
Third Amended and Restated Operating Agreement of Republic Services of New Jersey, LLC. |
|
|
|
* 3.816
|
|
Articles of Organization of Republic Services of North Carolina, LLC. |
|
|
|
* 3.817
|
|
Operating Agreement of Republic Services of North Carolina, LLC. |
|
|
|
* 3.818
|
|
Articles of Organization of Republic Services of Ohio Hauling, LLC, as amended. |
|
|
|
* 3.819
|
|
Second Amended and Restated Operating Agreement of Republic Services of Ohio Hauling, LLC. |
|
|
|
* 3.820
|
|
Articles of Organization of Republic Services of Ohio I, LLC, as amended. |
|
|
|
* 3.821
|
|
Second Amended and Restated Operating Agreement of Republic Services of Ohio I, LLC. |
|
|
|
* 3.822
|
|
Articles of Organization of Republic Services of Ohio II, LLC, as amended. |
|
|
|
* 3.823
|
|
Second Amended and Restated Operating Agreement of Republic Services of Ohio II, LLC. |
|
|
|
* 3.824
|
|
Articles of Organization of Republic Services of Ohio III, LLC, as amended. |
|
|
|
* 3.825
|
|
Second Amended and Restated Operating Agreement of Republic Services of Ohio III, LLC. |
|
|
|
* 3.826
|
|
Articles of Organization of Republic Services of Ohio IV, LLC, as amended. |
|
|
|
* 3.827
|
|
Second Amended and Restated Operating Agreement of Republic Services of Ohio IV, LLC. |
|
|
|
* 3.828
|
|
Certificate of Formation of Republic Services of Pennsylvania, LLC. |
|
|
|
* 3.829
|
|
Second Amended and Restated Operating Agreement of Republic Services of Pennsylvania, LLC. |
|
|
|
* 3.830
|
|
Certificate of Formation of Republic Services of South Carolina, LLC. |
|
|
|
* 3.831
|
|
Second Amended and Restated Operating Agreement of Republic Services of South Carolina, LLC. |
|
|
|
* 3.832
|
|
Certificate of Formation of Republic Services of Southern California, LLC. |
|
|
|
* 3.833
|
|
Operating Agreement of Republic Services of Southern California, LLC. |
|
|
|
* 3.834
|
|
Articles of Organization of Republic Services of Virginia, LLC, as amended. |
II-189
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.835
|
|
Operating Agreement of Republic Services of Virginia, LLC. |
|
|
|
* 3.836
|
|
Certificate of Formation of Republic Services of Wisconsin GP, LLC (f/k/a Republic Services of
Wisconsin GP, Inc.). |
|
|
|
* 3.837
|
|
Operating Agreement of Republic Services of Wisconsin GP, LLC. |
|
|
|
* 3.838
|
|
Certificate of Formation of Republic Services of Wisconsin LP, LLC (f/k/a Republic Services of
Wisconsin LP, Inc.). |
|
|
|
* 3.839
|
|
Operating Agreement of Republic Services of Wisconsin LP, LLC. |
|
|
|
* 3.840
|
|
Certificate of Limited Partnership of Republic Services of Wisconsin, Limited Partnership, as
amended. |
|
|
|
* 3.841
|
|
Amended and Restated Agreement of Limited Partnership of Republic Services of Wisconsin, Limited
Partnership. |
|
|
|
* 3.842
|
|
Articles of Incorporation of Republic Services Real Estate Holding, Inc. |
|
|
|
* 3.843
|
|
Amended and Restated Bylaws of Republic Services Real Estate Holding, Inc. |
|
|
|
* 3.844
|
|
Certificate of Formation of Republic Services Vasco Road, LLC (f/k/a Republic Services of
California Hauling, LLC), as amended. |
|
|
|
* 3.845
|
|
Second Amended and Restated Operating Agreement of Republic Services Vasco Road, LLC. |
|
|
|
* 3.846
|
|
Articles of Incorporation of Republic Silver State Disposal, Inc. (f/k/a RI/SSDS Acquisition
Corp., f/k/a RI/SSDS Merger Corp.), as amended. |
|
|
|
* 3.847
|
|
Amended and Restated Bylaws of Republic Silver State Disposal, Inc. |
|
|
|
* 3.848
|
|
Certificate of Formation of Republic Waste Services of Southern California, LLC (f/k/a Taormina
Industries, LLC), as amended. |
|
|
|
* 3.849
|
|
Fourth Amended and Restated Operating Agreement for Republic Waste Services of Southern
California, LLC (f/k/a Taorima Industries, LLC). |
|
|
|
* 3.850
|
|
Certificate of Incorporation of Republic Waste Services of Texas GP, Inc. |
|
|
|
* 3.851
|
|
Amended and Restated Bylaws of Republic Waste Services of Texas GP, Inc. |
|
|
|
* 3.852
|
|
Certificate of Incorporation of Republic Waste Services of Texas LP, Inc. |
|
|
|
* 3.853
|
|
Amended and Restated Bylaws of Republic Waste Services of Texas LP, Inc. |
|
|
|
* 3.854
|
|
Certificate of Limited Partnership of Republic Waste Services of Texas, Ltd. (f/k/a Republic Waste
Services of Texas, Inc.), as amended. |
|
|
|
* 3.855
|
|
Amended and Restated Texas Limited Partnership Agreement of Republic Waste Services of Texas, Ltd. |
|
|
|
* 3.856
|
|
Articles of Incorporation of Resource Recovery, Inc. |
|
|
|
* 3.857
|
|
Amended and Restated Bylaws of Resource Recovery, Inc. |
|
|
|
* 3.858
|
|
Articles of Incorporation of RI/Alameda Corp. |
|
|
|
* 3.859
|
|
Amended and Restated Bylaws of RI/Alameda Corp. |
|
|
|
* 3.860
|
|
Articles of Incorporation of Richmond Sanitary Service, Inc. |
|
|
|
* 3.861
|
|
Second Amended and Restated Bylaws of Richmond Sanitary Service, Inc. |
|
|
|
* 3.862
|
|
Certificate of Limited Partnership of Rio Grande Valley Landfill TX, LP. |
|
|
|
* 3.863
|
|
Agreement of Limited Partnership of Rio Grande Valley Landfill TX, LP, as amended. |
|
|
|
* 3.864
|
|
Certificate of Incorporation of Risk Services, Inc. |
II-190
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.865
|
|
Amended and Restated Bylaws of Risk Services, Inc. |
|
|
|
* 3.866
|
|
Certificate of Formation of RITM, LLC (f/k/a Letco, LLC), as amended. |
|
|
|
* 3.867
|
|
Second Amended and Restated Operating Agreement of RITM, LLC. |
|
|
|
* 3.868
|
|
Articles of Incorporation of Rock Road Industries, Inc. |
|
|
|
* 3.869
|
|
Amended and Restated Bylaws of Rock Road Industries, Inc. |
|
|
|
* 3.870
|
|
Articles of Incorporation of Ross Bros. Waste & Recycling Co. |
|
|
|
* 3.871
|
|
Amended and Restated Bylaws of Ross Bros. Waste & Recycling Co. |
|
|
|
* 3.872
|
|
Articles of Incorporation of Rossman Sanitary Service, Inc. |
|
|
|
* 3.873
|
|
Amended and Restated Bylaws of Rossman Sanitary Service, Inc. |
|
|
|
* 3.874
|
|
Articles of Incorporation of Roxana Landfill, Inc. (f/k/a Laidlaw Waste Systems (Madison) Inc.,
f/k/a GSX Corporation of Illinois), as amended. |
|
|
|
* 3.875
|
|
Amended and Restated Bylaws of Roxana Landfill, Inc. |
|
|
|
* 3.876
|
|
Articles of Incorporation of Royal Holdings, Inc. |
|
|
|
* 3.877
|
|
Bylaws of Royal Holdings, Inc. |
|
|
|
* 3.878
|
|
Certificate of Limited Partnership of Royal Oaks Landfill TX, LP. |
|
|
|
* 3.879
|
|
Agreement of Limited Partnership of Royal Oaks Landfill TX, LP. |
|
|
|
* 3.880
|
|
Certificate of Formation of Rubbish Control, L.L.C. (f/k/a Ventura County LLC). |
|
|
|
* 3.881
|
|
Second Amended and Restated Operating Agreement of Rubbish Control, LLC. |
|
|
|
* 3.882
|
|
Certificate of Limited Partnership of RWS Transport, L.P. |
|
|
|
* 3.883
|
|
Agreement of Limited Partnership of RWS Transport, L.P. |
|
|
|
* 3.884
|
|
Articles of Incorporation of S & S Recycling, Inc. |
|
|
|
* 3.885
|
|
Amended and Restated Bylaws of S & S Recycling, Inc. |
|
|
|
* 3.886
|
|
Certificate of Formation of S Leasing Company, LLC, as amended. |
|
|
|
* 3.887
|
|
Limited Liability Company Agreement of S Leasing Company, LLC, as amended. |
|
|
|
* 3.888
|
|
Articles of Incorporation of Saline County Landfill, Inc. |
|
|
|
* 3.889
|
|
Amended and Restated Bylaws of Saline County Landfill, Inc. |
|
|
|
* 3.890
|
|
Articles of Organization of San Diego Landfill Systems, LLC. |
|
|
|
* 3.891
|
|
Operating Agreement of San Diego Landfill Systems, LLC. |
|
|
|
* 3.892
|
|
Articles of Incorporation of San Marcos NCRRF, Inc. |
|
|
|
* 3.893
|
|
Bylaws of San Marcos NCRRF, Inc. |
|
|
|
* 3.894
|
|
Certificate of Formation of Sand Valley Holdings, L.L.C. (f/k/a Liberty Waste Services Holdings,
L.L.C.), as amended. |
|
|
|
* 3.895
|
|
Amended and Restated Operating Agreement of Sand Valley Holdings, L.L.C. (f/k/a Liberty Waste
Services Holdings, L.L.C.). |
|
|
|
* 3.896
|
|
Articles of Incorporation of Sandy Hollow Landfill Corp. |
|
|
|
* 3.897
|
|
Amended and Restated Bylaws of Sandy Hollow Landfill Corp. |
|
|
|
* 3.898
|
|
Certificate of Incorporation of Sangamon Valley Landfill, Inc. (f/k/a Draw Acquisition Company
Eighteen), as amended. |
II-191
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.899
|
|
Bylaws of Sangamon Valley Landfill, Inc. (f/k/a Draw Acquisition Company Eighteen). |
|
|
|
* 3.900
|
|
Articles of Incorporation of Sanitary Disposal Service, Inc. |
|
|
|
* 3.901
|
|
Bylaws of Sanitary Disposal Service, Inc. |
|
|
|
* 3.902
|
|
Articles of Incorporation of Sauk Trail Development, Inc. (f/k/a Wayne Disposal-Canton, Inc.), as
amended. |
|
|
|
* 3.903
|
|
Amended and Restated Bylaws of Sauk Trail Development, Inc. |
|
|
|
* 3.904
|
|
Articles of Incorporation of Schofield Corporation of Orlando, as amended. |
|
|
|
* 3.905
|
|
Second Amended and Restated Bylaws of Schofield Corporation of Orlando. |
|
|
|
* 3.906
|
|
Certificate of Formation of Show-Me Landfill, LLC. |
|
|
|
* 3.907
|
|
Operating Agreement of Show- Me Landfill, LLC. |
|
|
|
* 3.908
|
|
Articles of Incorporation of Shred All Recycling Systems Inc. |
|
|
|
* 3.909
|
|
Amended and Restated Bylaws of Shred All Recycling Systems Inc. |
|
|
|
* 3.910
|
|
Articles of Incorporation of Solano Garbage Company (f/k/a Richella Corporation), as amended. |
|
|
|
* 3.911
|
|
Second Amended and Restated Bylaws of Solano Garbage Company. |
|
|
|
* 3.912
|
|
Articles of Incorporation of Source Recycling, Inc., as amended. |
|
|
|
* 3.913
|
|
Amended and Restated Bylaws of Source Recycling, Inc. |
|
|
|
* 3.914
|
|
Certificate of Limited Partnership of South Central Texas Land Co. TX, LP, as amended. |
|
|
|
* 3.915
|
|
Agreement of Limited Partnership of South Central Texas Land Co. TX, LP. |
|
|
|
* 3.916
|
|
Certificate of Formation of Southeast Landfill, LLC. |
|
|
|
* 3.917
|
|
Operating Agreement of Southeast Landfill, LLC. |
|
|
|
* 3.918
|
|
Articles of Incorporation of Southern Illinois Regional Landfill, Inc. (f/k/a Metropolitan Waste
Systems, Inc.), as amended. |
|
|
|
* 3.919
|
|
Amended and Restated Bylaws of Southern Illinois Regional Landfill, Inc. |
|
|
|
* 3.920
|
|
Certificate of Limited Partnership of Southwest Landfill TX, LP, as amended. |
|
|
|
* 3.921
|
|
Agreement of Limited Partnership of Southwest Landfill TX, LP, as amended. |
|
|
|
* 3.922
|
|
Partnership Agreement of Springfield Environmental General Partnership. |
|
|
|
* 3.923
|
|
Articles of Organization of St. Bernard Parish Development Company, LLC. |
|
|
|
* 3.924
|
|
Operating Agreement of St. Bernard Parish Development Company, LLC. |
|
|
|
* 3.925
|
|
Articles of Organization of St. Joseph Landfill, LLC. |
|
|
|
* 3.926
|
|
Operating Agreement of St. Joseph Landfill, LLC. |
|
|
|
* 3.927
|
|
Articles of Incorporation of Standard Disposal Services, Inc. (f/k/a Manumit, Inc.), as amended. |
|
|
|
* 3.928
|
|
Amended and Restated Bylaws of Standard Disposal Services, Inc. |
|
|
|
* 3.929
|
|
Articles of Incorporation of Standard Environmental Services, Inc. |
|
|
|
* 3.930
|
|
Amended and Restated Bylaws of Standard Environmental Services, Inc. |
|
|
|
* 3.931
|
|
Certificate of Incorporation of Standard Waste, Inc. |
|
|
|
* 3.932
|
|
Amended and Restated Bylaws of Standard Waste, Inc. |
|
|
|
* 3.933
|
|
Articles of Incorporation of Streator Area Landfill, Inc. |
II-192
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.934
|
|
Bylaws of Streator Area Landfill, Inc. |
|
|
|
* 3.935
|
|
Articles of Incorporation of Suburban Transfer, Inc. |
|
|
|
* 3.936
|
|
Amended and Restated Bylaws of Suburban Transfer, Inc. |
|
|
|
* 3.937
|
|
Articles of Incorporation of Suburban Warehouse, Inc. |
|
|
|
* 3.938
|
|
Amended and Restated Bylaws of Suburban Warehouse, Inc. |
|
|
|
* 3.939
|
|
Articles of Incorporation of Summit Waste Systems, Inc. |
|
|
|
* 3.940
|
|
Amended and Restated Bylaws of Summit Waste Systems, Inc. |
|
|
|
* 3.941
|
|
Articles of Incorporation of Sunrise Sanitation Service, Inc. |
|
|
|
* 3.942
|
|
Bylaws of Sunrise Sanitation Service, Inc. |
|
|
|
* 3.943
|
|
Articles of Incorporation of Sunset Disposal Service, Inc. (f/k/a Pacific Paper Transport
Company), as amended. |
|
|
|
* 3.944
|
|
Bylaws of Sunset Disposal Service, Inc. |
|
|
|
* 3.945
|
|
Articles of Incorporation of Sunset Disposal, Inc. |
|
|
|
* 3.946
|
|
Amended and Restated Bylaws of Sunset Disposal, Inc. |
|
|
|
* 3.947
|
|
Articles of Incorporation of Sycamore Landfill, Inc. |
|
|
|
* 3.948
|
|
Amended and Restated Bylaws of Sycamore Landfill, Inc. |
|
|
|
* 3.949
|
|
Articles of Incorporation of Tates Transfer Systems, Inc. |
|
|
|
* 3.950
|
|
Amended and Restated Bylaws of Tates Transfer Systems, Inc. |
|
|
|
* 3.951
|
|
Articles of Incorporation of Tay-Ban Corporation, as amended. |
|
|
|
* 3.952
|
|
Amended and Restated Bylaws of Tay-Ban Corporation. |
|
|
|
* 3.953
|
|
Certificate of Incorporation of Taylor Ridge Landfill, Inc. (f/k/a Draw Acquisition Company
Twenty-Two), as amended. |
|
|
|
* 3.954
|
|
Bylaws of Taylor Ridge Landfill, Inc. (f/k/a Draw Acquisition Company Twenty-Two). |
|
|
|
* 3.955
|
|
Certificate of Incorporation of Tennessee Union County Landfill, Inc. |
|
|
|
* 3.956
|
|
Bylaws of Tennessee Union County Landfill, Inc. |
|
|
|
* 3.957
|
|
Certificate of Limited Partnership of Tessman Road Landfill TX, LP. |
|
|
|
* 3.958
|
|
Agreement of Limited Partnership of Tessman Road Landfill TX, LP. |
|
|
|
* 3.959
|
|
Articles of Incorporation of The Ecology Group, Inc. (f/k/a Ecology Group, Incorporated), as
amended. |
|
|
|
* 3.960
|
|
Amended and Restated Bylaws of The Ecology Group, Inc. |
|
|
|
* 3.961
|
|
Articles of Incorporation of Thomas Disposal Service, Inc. |
|
|
|
* 3.962
|
|
Bylaws of Thomas Disposal Service, Inc. |
|
|
|
* 3.963
|
|
Partnership Agreement of Tippecanoe County Waste Services Partnership. |
|
|
|
* 3.964
|
|
Certificate of Incorporation of Tom Lucianos Disposal Service, Inc. |
|
|
|
* 3.965
|
|
Amended and Restated Bylaws of Tom Lucianos Disposal Service, Inc. |
|
|
|
* 3.966
|
|
Articles of Organization of Total Roll-Offs, L.L.C. |
|
|
|
* 3.967
|
|
Operating Agreement of Total Roll-Offs, L.L.C. |
II-193
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.968
|
|
Certificate of Incorporation of Total Solid Waste Recyclers, Inc. (f/k/a Total Solid Waste
Coordinators, Inc.), as amended. |
|
|
|
* 3.969
|
|
Amended and Restated Bylaws of Total Solid Waste Recyclers, Inc. |
|
|
|
* 3.970
|
|
Certificate of Incorporation of Tricil (N.Y.), Inc. (f/k/a Tricil (U.S.) Inc., f/k/a Tricil U.S.,
Ltd., f/k/a Seaway Disposal Systems, Inc., f/k/a Wilbur F. Hunt, Inc.), as amended. |
|
|
|
* 3.971
|
|
Bylaws of Tricil (N.Y.), Inc. |
|
|
|
* 3.972
|
|
Articles of Incorporation of Tri-County Refuse Service, Inc. |
|
|
|
* 3.973
|
|
Amended and Restated Bylaws of Tri-County Refuse Service, Inc. |
|
|
|
* 3.974
|
|
Articles of Incorporation of Tri-State Recycling Services, Inc. |
|
|
|
* 3.975
|
|
Amended and Restated Bylaws of Tri-State Recycling Services, Inc. |
|
|
|
* 3.976
|
|
Articles of Incorporation of Tri-State Refuse Corporation, as amended. |
|
|
|
* 3.977
|
|
Bylaws of Tri-State Refuse Corporation. |
|
|
|
* 3.978
|
|
Certificate of Limited Partnership of Turkey Creek Landfill TX, LP, as amended. |
|
|
|
* 3.979
|
|
Agreement of Limited Partnership of Turkey Creek Landfill TX, LP. |
|
|
|
* 3.980
|
|
Articles of Incorporation of United Disposal Service, Inc. (f/k/a HDS, Incorporated), as amended. |
|
|
|
* 3.981
|
|
Amended and Restated Bylaws of United Disposal Service, Inc. |
|
|
|
* 3.982
|
|
Articles of Incorporation of Upper Rock Island County Landfill, Inc. |
|
|
|
* 3.983
|
|
Amended and Restated Bylaws of Upper Rock Island County Landfill, Inc. |
|
|
|
* 3.984
|
|
Articles of Incorporation of Valley Landfills, Inc. |
|
|
|
* 3.985
|
|
Amended and Restated Bylaws of Valley Landfills, Inc. |
|
|
|
* 3.986
|
|
Certificate of Limited Partnership of Victoria Landfill TX, LP, as amended. |
|
|
|
* 3.987
|
|
Agreement of Limited Partnership of Victoria Landfill TX, LP, as amended. |
|
|
|
* 3.988
|
|
Articles of Organization of Vining Disposal Service, Inc., as amended. |
|
|
|
* 3.989
|
|
Bylaws of Vining Disposal Service, Inc., as amended. |
|
|
|
* 3.990
|
|
Partnership Agreement of Warrick County Development Company. |
|
|
|
* 3.991
|
|
Articles of Incorporation of Wasatch Regional Landfill, Inc. |
|
|
|
* 3.992
|
|
Bylaws of Wasatch Regional Landfill, Inc. |
|
|
|
* 3.993
|
|
Articles of Incorporation of Waste Control Systems, Inc. (f/k/a Peltier Enterprises, Inc.), as
amended. |
|
|
|
* 3.994
|
|
Amended and Restated Bylaws of Waste Control Systems, Inc. |
|
|
|
* 3.995
|
|
Certificate of Incorporation of Waste Services of New York, Inc. (f/k/a Allied Waste Industries of
New York), as amended. |
|
|
|
* 3.996
|
|
Amended and Restated Bylaws of Waste Services of New York, Inc. |
|
|
|
* 3.997
|
|
Articles of Incorporation of Wastehaul, Inc. |
|
|
|
* 3.998
|
|
Amended and Restated Bylaws of Wastehaul, Inc. |
|
|
|
* 3.999
|
|
Articles of Organization of Wayne County Land Development, LLC. |
|
|
|
* 3.1000
|
|
Operating Agreement of Wayne County Land Development, LLC. |
|
|
|
* 3.1001
|
|
Certificate of Incorporation of Wayne County Landfill IL, Inc. |
|
|
|
* 3.1002
|
|
Bylaws of Wayne County Landfill IL, Inc. |
II-194
|
|
|
Exhibit |
|
|
Number |
|
Description |
* 3.1003
|
|
Articles of Organization of Wayne Developers, LLC. |
|
|
|
* 3.1004
|
|
Operating Agreement of Wayne Developers, LLC. |
|
|
|
* 3.1005
|
|
Articles of Incorporation of WDTR, Inc. (f/k/a Woodburn Trucking Inc.), as amended. |
|
|
|
* 3.1006
|
|
Amended and Restated Bylaws of WDTR, Inc. |
|
|
|
* 3.1007
|
|
Certificate of Formation of Webster Parish Landfill, L.L.C. |
|
|
|
* 3.1008
|
|
Limited Liability Company Agreement of Webster Parish Landfill, L.L.C. |
|
|
|
* 3.1009
|
|
Articles of Incorporation of West Contra Costa Energy Recovery Company. |
|
|
|
* 3.1010
|
|
Second Amended and Restated Bylaws of West Contra Costa Energy Recovery Company. |
|
|
|
* 3.1011
|
|
Articles of Incorporation of West Contra Costa Sanitary Landfill, Inc. |
|
|
|
* 3.1012
|
|
Second Amended and Restated Bylaws of West Contra Costa Sanitary Landfill, Inc. |
|
|
|
* 3.1013
|
|
Articles of Incorporation of West County Landfill, Inc. |
|
|
|
* 3.1014
|
|
Second Amended and Restated Bylaws of West County Landfill, Inc. |
|
|
|
* 3.1015
|
|
Articles of Incorporation of West County Resource Recovery, Inc. |
|
|
|
* 3.1016
|
|
Second Amended and Restated Bylaws of West County Resource Recovery, Inc. |
|
|
|
* 3.1017
|
|
Certificate of Limited Partnership of Whispering Pines Landfill TX, LP, as amended. |
|
|
|
* 3.1018
|
|
Agreement of Limited Partnership of Whispering Pines Landfill TX, LP, as amended. |
|
|
|
* 3.1019
|
|
Articles of Incorporation of Willamette Resources, Inc. (f/k/a Sanitation Equipment Leasing, Inc.,
f/k/a Peltier Equipment Leasing Corp.), as amended. |
|
|
|
* 3.1020
|
|
Amended and Restated Bylaws of Willamette Resources, Inc. |
|
|
|
* 3.1021
|
|
Articles of Incorporation of Williams County Landfill Inc. |
|
|
|
* 3.1022
|
|
Amended and Restated Bylaws of Williams County Landfill Inc. |
|
|
|
* 3.1023
|
|
Certificate of Formation of Willow Ridge Landfill, LLC (f/k/a Peerless Landfill, LLC), as amended. |
|
|
|
* 3.1024
|
|
Operating Agreement of Willow Ridge Landfill, LLC (f/k/a Peerless Landfill, LLC). |
|
|
|
* 3.1025
|
|
Articles of Incorporation of WJR Environmental, Inc. |
|
|
|
* 3.1026
|
|
Bylaws of WJR Environmental, Inc. (f/k/a Rabanco Acquisition Company Five). |
|
|
|
* 3.1027
|
|
Articles of Incorporation of Woodlake Sanitary Service, Inc. |
|
|
|
* 3.1028
|
|
Amended and Restated Bylaws of Woodlake Sanitary Service, Inc. |
|
|
|
* 3.1029
|
|
Articles of Incorporation of Zakaroff Services (f/k/a Western Rubbish Service, Inc., f/k/a
Kandilian Enterprises, Inc.), as amended. |
|
|
|
* 3.1030
|
|
Second Amended and Restated Bylaws of Zakaroff Services. |
|
|
|
4.1
|
|
Indenture, dated as of September 8, 2009, by and between Republic Services, Inc. and The Bank of
New York Mellon Trust Company, N.A., as trustee, including form of Debt Security (incorporated by
reference to Exhibit 4.1 to Republics Current Report on Form 8-K filed on September 9, 2009). |
|
|
|
4.2
|
|
First Supplemental Indenture, dated as of September 8, 2009, to the Indenture dated as of
September 8, 2009, by and among Republic Services, Inc., the guarantors named therein and The Bank
of New York Mellon Trust Company, N.A., as trustee, including the form of 5.500% Notes due 2019
(incorporated by reference to Exhibit 4.2 to Republics Current Report on Form 8-K dated September
9, 2009). |
|
|
|
4.3
|
|
Indenture, dated as of November 25, 2009, by and between Republic Services, Inc. and U.S. Bank
National Association, as trustee, including form of Debt Security (incorporated by reference to
Exhibit 4.1 to Republics Current Report on Form 8-K filed on November 25, 2009). |
II-195
|
|
|
Exhibit |
|
|
Number |
|
Description |
4.4
|
|
First Supplemental Indenture, dated as of November 25, 2009, to the Indenture dated as of November
25, 2009, by and among Republic Services, Inc., the guarantors named therein and U.S. Bank
National Association, as trustee, including the form of 5.25% Notes due 2021 (incorporated by
reference to Exhibit 4.2 to Republics Current Report on Form 8-K dated November 25, 2009). |
|
|
|
4.5
|
|
Second Supplemental Indenture, dated as of March 4, 2010, to the Indenture dated as of November
25, 2009, by and among Republic Services, Inc., the guarantors named therein and U.S. Bank
National Association, as trustee, including the form of 5.00% Notes due 2020 (incorporated by
reference to Exhibit 4.1 to Republics Current Report on Form 8-K dated March 4, 2010). |
|
|
|
4.6
|
|
Third Supplemental Indenture, dated as of March 4, 2010, to the Indenture dated as of November 25,
2009, by and among Republic Services, Inc., the guarantors named therein and U.S. Bank National
Association, as trustee, including the form of 6.20% Notes due 2020 (incorporated by reference to
Exhibit 4.1 to Republics Current Report on Form 8-K dated March 4, 2010). |
|
|
|
4.7
|
|
Registration Rights Agreement, dated as of September 8, 2009, by and among Republic Services,
Inc., the guarantors party thereto and Banc of America Securities LLC, Barclays Capital Inc. and
J.P. Morgan Securities Inc., as representatives of the several initial purchasers named therein,
relating to $650.0 million aggregate principal amount of 5.500% Notes due 2019 (incorporated by
reference to Exhibit 4.3 to Republics Current Report on Form 8-K dated September 9, 2009). |
|
|
|
4.8
|
|
Registration Rights Agreement, dated as of November 25, 2009, by and among Republic Services,
Inc., the guarantors party thereto and Banc of America Securities LLC, RBS Securities Inc., BNP
Paribas Securities Corp. and Wells Fargo Securities, LLC, as representatives of the several
initial purchasers named therein, relating to $600.0 million aggregate principal amount of
5.25% Notes due 2021 (incorporated by reference to Exhibit 4.3 to Republics Current Report on
Form 8-K dated November 25, 2009). |
|
|
|
4.9
|
|
Registration Rights Agreement, dated as of March 4, 2010, by and among Republic Services, Inc.,
the guarantors party thereto and Banc of America Securities LLC, Barclays Capital Inc., J.P.
Morgan Securities Inc. and UBS Securities LLC, as representatives of the several initial
purchasers named therein, relating to $850.0 million aggregate principal amount of 5.00% Notes due
2020 and $650.0 million aggregate principal amount of 6.20% Notes due 2040 (incorporated by
reference to Exhibit 4.3 to Republics Current Report on Form 8-K dated March 4, 2010). |
|
|
|
5.1
|
|
Opinion of Mayer Brown LLP with respect to the exchange notes. |
|
|
|
12.1
|
|
Statement of computation of ratios of earnings to fixed charges. |
|
|
|
23.1
|
|
Consent of Ernst & Young LLP. |
|
|
|
23.2
|
|
Consent of Mayer Brown LLP (contained in Exhibit 5.1). |
|
|
|
24.1
|
|
Powers of attorney (included in signature pages of the Registration Statement). |
|
|
|
25.1
|
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York
Mellon Trust Company, N.A. |
|
|
|
25.2
|
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of U.S. Bank National
Association. |
|
|
|
99.1
|
|
Form of Letter of Transmittal. |
|
|
|
* |
|
To be filed by amendment or incorporated by reference in connection with the offering of
securities registered hereby, as appropriate. |
|
|
|
Filed previously. |
II-196
exv3w311
Exhibit 3.311
CERTIFICATE OF LIMITED PARTNERSHIP
OF
BRENHAM TOTAL ROLL-OFFS, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code,
Chapter 17, hereby certifies as follows:
I.
The name of the limited partnership is Brenham Total Roll-Offs, LP.
II. The address of the Partnerships registered office in the State of Delaware is
Corporation Trust Center, 1200 Orange Street, Wilmington, Delaware 19801, The name of the
Partnerships registered agent for service of process in the State of Delaware at such address
is The Corporation Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied
Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Brenham Total Roll-Offs, LP as of August 21, 2001.
|
|
|
|
|
|
Allied Waste Landfill Holdings, Inc., a Delaware corporation, its General
Partner
|
|
|
By: |
/s/
D. W. Slager
|
|
|
Name: |
D. W. Slager |
|
|
Title: |
President |
|
|
|
|
|
|
|
|
|
STATE OF DELAWARE |
|
|
SECRETARY OF STATE |
|
|
DIVISION OF CORPORATIONS |
|
|
FILED 12:30 PM 08/22/2001 |
|
|
010414139 3428278 |
exv3w312
Exhibit 3.312
AGREEMENT OF LIMITED PARTNERSHIP OF
BRENHAM TOTAL ROLL-OFFS, LP
This Agreement of Limited Partnership is entered into as of August 22, 2001, by and
between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and
ALLIED WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the
following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Brenham Total Roll-Offs, LP. The
General Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of non-hazardous solid waste management, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General
Partner files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity
until the Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or court-
appointed trustee if there be no General Partner) shall take full account of the Partnerships
liabilities and Partnerships property, and the Partnerships property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. During the period of liquidation,
the business and affairs of the Partnership shall continue to be governed by the provisions of this
Agreement. The proceeds from liquidation of the Partnerships property, to the extent sufficient
therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the Partners,
a certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
8
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
9
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., a Delaware corporation |
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Allied Waste Systems
Holdings, Inc., a Delaware
corporation |
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By:
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/s/ D.W. Slager
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By:
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/s/ Jo Lynn White
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Name:
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D.W. Slager
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Name:
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Jo Lynn White |
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Its:
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President
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Its:
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Secratery |
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10
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner: Allied Waste
Landfill Holdings, Inc. 15880
North Greenway Hayden Loop Suite
100 Scottsdale, Arizona 85260
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$ |
10.00 |
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1 |
% |
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Limited Partner: Allied Waste
Systems Holdings, Inc. 15880
North Greenway Hayden Loop Suite
100 Scottsdale, Arizona 85260
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$ |
990.00 |
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99 |
% |
11
exv3w313
Exhibit 3.313
FORM B C A-47
BEFORE ATTEMPTING TO EXECUTE THESE BLANKS BE SURE TO READ CAREFULLY
THE INSTRUCTIONS ON THE BACK THEREOF.
(THESE ARTICLES MUST BE FILED IN DUPLICATE)
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(Do note write in this space) |
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STATE OF ILLINOIS,
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} |
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Date Paid
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8-20-71 |
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ss. |
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Initial License Fee
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$ 12.50 |
VERMILION COUNTY IL
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Franchise Tax
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$ 22.97 |
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Filing Fee
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$ 75.00 |
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TO JOHN W. LEWIS, Secretary of State:
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Clerk
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$ 110.47 |
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The undersigned, |
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Address |
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Name |
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Number |
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Street |
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City |
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State |
John E. Sebat
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306 |
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Adams Building
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Danville, IL
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61832 |
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Ralph J. Swanson
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306 |
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Adams Building
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Danville, IL
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61832 |
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Robert J. Banks
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306 |
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Adams Building
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Danville, IL
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61832 |
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being one or more natural persons of the age of twenty-one years or more or a corporation,
and having subscribed to shares of the corporation to be organized pursuant hereto, for the
purpose of forming a corporation under The Business Corporation Act of the State of Illinois,
do hereby adopt the following Articles of Incorporation:
ARTICLE ONE
The name of the corporation hereby incorporated is: H/L Disposal Co.
ARTICLE TWO
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The address of its initial registered office in the State of Illinois is: 306 Adams Building
Street, in the City of Danville (61832) County of Vermilion and the name of its initial Registered Agent at said address is: John E. Sebat
(Zip Code) |
ARTICLE THREE
The duration of the corporation is: Perpetual
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PAID |
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AUG 23 1971 |
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/s/ John W. Lewis
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Secretary of State |
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ARTICLE FOUR
The purpose or purposes for which the corporation is
organized are:
Disposal of waste products
ARTICLE FIVE
PARAGRAPH 1: The aggregate number of shares which the corporation is authorized to issue is ,
divided into One classes. The designation of each class, the number of shares of each class, and
the
par value, if any, of the shares of each class, or a statement that the shares of any class are
without par value, are as follows:
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Series |
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Number of |
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Par value per share or statement that shares |
Class |
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(If any) |
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Shares |
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are without par value |
ONE |
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250,000 |
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$ |
1.00 |
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PARAGRAPH 2: The preferences, qualifications, limitations, restrictions and the special or
relative rights in
respect of the shares of each class are :
None
ARTICLE SIX
The class and number of shares which the corporation proposes to issue without further report
to the Secretary of State, and the consideration (expressed in dollars) to be received by the
corporation therefor, are:
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Total consideration to be |
Class of shares |
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Number of shares |
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received therefor : |
ONE |
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25,000 |
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$ |
25,000.00 |
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$ |
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ARTICLE SEVEN
The corporation will not commence business until at least one thousand dollars has been
received as consideration for the issuance of shares.
ARTICLE EIGHT
The number of directors to be elected at the first meeting of the shareholders is: 3
ARTICLE NINE
PARAGRAPH 1: It is estimated that the value of all property to be owned by the corporation for the
following year wherever located will be $
PARAGRAPH 2: It is estimated that the value of the property to be located within the State of Illinois during
the following year will be $
PARAGRAPH 3: It is estimated that the gross amount of business which will be transacted by the corporation
during the following year will be $
PARAGRAPH 4: It is estimated that the gross amount of business which will be transacted at or from places
of business in the State of Illinois during the following year will be $
NOTE: If all the property of the corporation is to be located in this State and all of its
business is to be transacted at or from places of business in this State, or if the
incorporators elect to pay the initial franchise tax on the basis of its entire stated capital
and paid-in surplus, then the information called for in Article Nine need not be stated.
All property of corporation is to be located in Illinois and all its business is to
be transacted at or from places of business in this State.
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John
E. Sebat |
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} |
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Ralph
J. Swanson |
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Incorporators |
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Robert
A. Banks |
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NOTE: There may be one or more incorporators. Each incorporator shall be either a
corporation, domestic or foreign, or a natural person of the age of twenty-one years or more.
If a corporation acts as incorporator, the name of the corporation and state of incorporation
shall be shown and the execution must be by its President or Vice-President and verified by
him, and the corporate seal shall be affixed and attested by its Secretary or an Assistant
Secretary.
OATH AND ACKNOWLEDGMENT
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STATE OF ILLINOIS |
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} |
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VERMILION County |
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ss. |
I, Jean Haurez, A Notary Public, do hereby certify that on the 18th day
of August 1971 John E. Sebat, Ralph J. Swanson and Robert J.
Banks personally appeared before me and being first duly sworn by me acknowledged the signing of
the foregoing document in the respective capacities therein set forth and declared that the
statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year above written.
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Place |
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/s/ Jean Haurez |
(NOTARIAL SEAL) |
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Notary Public |
Here |
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FORM B C A-47
ARTICLES OF INCORPORATION
The following fees are required to be paid at the time of issuing certificate of
incorporation: Filing fee, $75.00; Initial license fee of 50c per $1,000.00 or l/20th of 1% of
the amount of stated capital and paid-in surplus the corporation proposes to issue without
further report (Article Six); Initial franchise tax of 1/10th of 1% of the issued, as above
noted. However, the minimum initial franchise tax is $100.00 and varies monthly on $100,000,
or less, as follows: January, $150.00; February, $141.67; March, $133.34; April, $125.00; May,
$116.67; June, $108.34; July, $100.00; August, $91.67; September, $83.34; October, $75.00;
November, $66.67; December, $58.34; (See Sec. 133 BCA).
In excess of $100,000, the franchise tax per $1,000.00 is as follows: Jan., $1.50; Feb.,
1.4167; March, 1.3334; April, 1.25; May, 1.1667; June, 1.0834; July, 1.00; Aug., .9167; Sept.,
..8334; Oct., .75; Nov., .6667; Dec., .5834. All shares issued in excess of the amount
mentioned in Article Six of this application must be reported within 60 days from date of
issuance thereof, and franchise tax and license fee paid thereon; otherwise, the corporation
is subject to a penalty of 1% for each month on the amount until reported and subject to a
fine of not to exceed $500.00.
The same fees are required for a subsequent issue of shares except the filing fee is $1.00
instead of $75.00.
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FILED |
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AUG 20 1971 |
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/s/ John W. Lewis |
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Secretary of State
(1849820M370) |
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Form BCA-10.30 |
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ARTICLES OF AMENDMENT |
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(Rev. Jan. 1995) |
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File # D4988-030-8 |
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George H. Ryan |
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SUBMIT IN DUPLICATE |
Secretary of State |
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FILED |
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Department of Business Services |
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This space for use by |
Springfield, IL 62756 |
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APR 18 1996 |
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Secretary of State |
Telephone (217) 782-1832 |
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Date 4-18-96 |
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GEORGE H. RYAN |
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Remit payment in check or money |
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SECRETARY OF STATE |
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Franchise Tax $ |
order, payable to Secretary of
State. |
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Filing Fee* $25 |
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Penalty $ |
* The filing fee for articles of amendment $25.00 |
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Approved: /s/ [ILLEGIBLE] |
1. |
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CORPORATE NAME: H/L Disposal Co. |
(Note 1)
2. |
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MANNER OF ADOPTION OF AMENDMENT: |
The following amendment of the Articles of Incorporation was adopted on April 15,
1996 in the manner indicated below. (X one box only)
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By a majority of the incorporators, provided no directors were named in the articles of incorporation and no directors have been elected; |
(Note 2)
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o |
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By a majority of the board of directors, in accordance with Section 10.10, the corporation having issued no shares as of the time of adoption of this amendment; |
(Note 2)
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By a majority of the board of directors, in accordance with Section 10.15, shares having been issued but shareholder action not being required for the adoption of the
amendment; |
(Note 3)
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By the shareholders, in accordance with Section 10.20, a resolution of the board of directors having been duly adopted and submitted to the shareholders. At a meeting of
shareholders, not less than the minimum number of votes required by statute and by the articles of incorporation were voted in favor of the amendment; |
(Note 4)
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By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the board of directors having been duly adopted and submitted to the shareholders. A
consent in writing has been signed by shareholders having not less than the minimum number of votes required by statute and by the articles of incorporation. Shareholders
who have not consented in writing have been given notice in accordance with Section 7.10; |
(Notes 4 & 5)
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By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the board of directors having been duly adopted and submitted to the shareholders. A
consent in writing has been signed by all the shareholders entitled to vote on this amendment. |
(Note 5)
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a. |
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When amendment effects a name change, insert the new corporate name below.
Use Page 2 for all other amendments. |
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Article I: The name of the corporation is: |
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Brickyard Disposal & Recycling, Inc. |
(NEW NAME)
All changes other than name, include on page 2
(over)
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EXPEDITED |
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APR 18 1996 |
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SECRETARY OF STATE |
Text of Amendment
b. |
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(If amendment affects the corporate purpose, the amended purpose is required to be
set forth in its entirety. If there is not sufficient space to do so, add one or more sheets
of this size.) |
No change.
Page 2
4. |
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The manner, if not set forth in Article 3b, in which any exchange, reclassification or
cancellation of issued shares,
or a reduction of the number of authorized shares of any class below the number of issued
shares of that class, provided for or effected by this amendment, is as follows: (If not
applicable, insert No change) |
No change.
5. |
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(a) The manner, if not set forth in Article 3b, in which said amendment effects a change
in the amount of paid-in
capital (Paid-in capital replaces the terms Stated Capital and Paid-in Surplus and is
equal to the total of these accounts) is as follows: (If not applicable, insert No
change) |
No change.
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(b) The amount of paid-in capital (Paid-in Capital replaces the terms Stated Capital
and Paid-in Surplus and is equal to the total of these accounts) as changed by this
amendment is as follows: (If not applicable, insert No change) |
No change.
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Before Amendment |
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After Amendment |
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Paid-in Capital |
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$ N/A |
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$ N/A |
(Complete either Item 6 or 7 below. All signatures must be in BLACK INK.)
6. |
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The undersigned corporation has caused this statement to be signed by its duly authorized
officers, each of whom affirms, under penalties of perjury, that the facts stated herein are
true. |
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Dated |
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April 15, 1996 |
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H/L Disposal Co. |
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(Exact Name of Corporation at date of execution) |
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attested by |
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/s/ Thomas K. Kehoe |
by |
/s/ Gary Duckett |
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(Signature of Secretary or Assistant Secretary) |
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(Signature of President or Vice President) |
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Thomas K. Kehoe, Secretary |
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Gary Duckett, President |
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(Type or Print Name and Title) |
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(Type or Print Name and Title) |
7. |
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If amendment is authorized pursuant to Section 10.10 by the incorporators, the
incorporators must sign below, and type or print name and title. |
OR
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If amendment is authorized by the directors pursuant to Section 10.10 and there are no
officers, then a majority of the directors or such directors as may be designated by the board,
must sign below, and type or print name and title. |
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The undersigned affirms, under the penalties of perjury, that the facts stated herein are true. |
Page 3
exv3w314
Exhibit 3.314
AMENDED AND RESTATED BYLAWS
OF
BRICKYARD DISPOSAL & RECYCLING, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or these
Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted
on or after eleven (11) months from its date, unless such proxy provides for and, applicable state
law allows for, a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
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Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
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office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
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Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
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ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
6
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of
Directors so requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a
7
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it
8
may be issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at
his address as it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the
9
time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
10
Corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys fees) actually and reasonably
incurred by him in connection therewith, without
the necessity of authorization in the specific case.
11
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those
seeking indemnification or
12
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 10.
Limitation on Indemnification. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
13
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations Certificate
of Incorporation shall be deemed to refer to its articles or certificate of incorporation and all
and any amendments thereto as of any given time on file with the applicable state office of agency
(or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall in all
respects be considered senior and superior to these bylaws, with any inconsistency to be resolved
in favor of the Certificate or applicable state law, as the case may be, and the Bylaws shall be
deemed to be amended automatically from time to time to eliminate any such inconsistencies which
may then exist.
14
exv3w315
Exhibit 3.315
CERTIFICATE OF FORMATION
BRIDGETON LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this instrument
is Bridgeton Landfill, LLC.
2. Registered Office; Registered Agent. The address of the registered office of
the Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 21st day of November, 1997.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Vice President/Legal |
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exv3w316
Exhibit 3.316
OPERATING AGREEMENT OF
BRIDGETON LANDFILL LLC
This Operating Agreement is executed as of November 21, 1997, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Bridgeton Landfill LLC. The name of the Company
may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation
to be filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to
the Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ Henry L. Hirvela |
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Its: |
Vice President |
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6
EXHIBIT A
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Initial |
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Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc. |
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$ |
100.00 |
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15880 N. Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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7
exv3w317
Exhibit 3.317
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 05:00 PM 02/26/2003 |
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030127103 3629849 |
CERTIFICATE
OF FORMATION
OF
BRIDGETON TRANSFER STATION, LLC
1. The name of the limited liability company is Bridgeton Transfer Station, LLC.
2. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of
Bridgeton Transfer Station, LLC this 26th day of February, 2003.
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By: |
/s/ Jo Lynn White
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Jo Lynn White, |
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Authorized Person |
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exv3w318
Exhibit 3.318
OPERATING AGREEMENT OF
BRIDGETON TRANSFER STATION, LLC
This Operating Agreement is executed as of February 26, 2003, by Bridgeton Landfill, LLC, a
Delaware limited liability company (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Bridgeton Transfer Station, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the Member are set forth on
Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
2
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following
events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
3
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof
4
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
5
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits
and Losses mean, for each fiscal year or other period, an amount equal to
the Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BRIDGETON LANDFILL, LLC,
a Delaware limited liability company
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By: |
/s/ Jo Lynn White
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Its: |
Secretary |
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EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Bridgeton Landfill, LLC |
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100.00 |
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13570 St. Charles Rock Road |
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Bridgeton, MO 63044 |
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exv3w319
Exhibit 3.319
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS FINANCIAL SERVICES, INC.
* * * * *
1. The name of the corporation is Browning-Ferris Financial Services, Inc.
2. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue
is One Thousand (1,000) and the par value of each of such shares is One Dollars and No
Cents ($1.00), amounting in the aggregate to One Thousand Dollars and No Cents ($1,000,00).
5. The name and mailing address of each incorporator is as follows:
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NAME |
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MAILING ADDRESS |
J.J. McBurnett
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811 Dallas Avenue, Houston, TX 77002 |
L.L. Walker
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811 Dallas Avenue, Houston, TX 77002 |
D.P. McMahon
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811 Dallas Avenue, Houston, TX 77002 |
The name and mailing address of each person, who is to serve as a director until the
first annual meeting of the stockholders or until a successor is elected and qualified, is as
follows:
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NAME |
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MAILING ADDRESS |
Gerald K. Burger
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757 N. Eldridge, Houston, TX 77079 |
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute, the board of
directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the by-laws of the
corporation shall so provide.
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws
may provide. The books of the corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be designated from time to
time by the board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this
reservation.
10. A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director except for
liability (i) for any breach of the directors duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any improper
personal benefit.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make
this Certificate, hereby declaring and certifying that this is our act and deed and the facts
herein stated are true, and accordingly have hereunto set our hands this Fourteenth day of
November, 1995.
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/s/ J.J. McBurnett
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J.J. McBurnett |
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/s/ L.L. Walker
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L.L. Walker |
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/s/ D.P. McMahon
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D.P. McMahon |
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exv3w320
Exhibit 3.320
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS FINANCIAL SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Year Fiscal. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings bv or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other corporation
or any partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w321
Exhibit 3.321
ARTICLES OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INC.
FIRST. The name of the corporation is BROWNING-FERRIS INDUSTRIES CHEMICAL
SERVICES, INC.
SECOND. Its principal office in the State of Nevada is located at One East First
Street, Reno, Washoe County, Nevada 89501. The name and address of its resident agent is The
Corporation Trust Company of Nevada, One East First Street, Reno, Nevada 89501.
THIRD. The nature of the business, or objects or purposes proposed to be transacted, promoted
or carried on are:
To
provide manual and chemical cleaning services to heavy industry and the sale of
proprietary and other chemical;
To provide catalyst loading, handling, hauling, cleaning and processing services to
industries requiring our services;
To
buy, collect, transport, process and sell paper, secondary fibers and wood pulp;
To collect, transport, process and dispose of solid and liquid waste of all
descriptions;
To construct, repair, use and sell equipment and buildings of all kinds within and without
our line of trade.
To engage in any lawful activity and to manufacture, purchase or otherwise acquire,
invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of,
trade, deal in and deal with goods, wares and merchandise and personal property of
every class and description.
To hold, purchase and convey real and personal property and to mortgage or sublease any
such real and personal property with its franchises and to take the same by devise or bequest.
To
acquire, and pay for in cash, stock or bonds of this corporation or otherwise,
the good will, rights, assets and property, and to undertake or assume the whole or any part
of the obligations or liabilities of any person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant license in respect of, mortgage, or
otherwise dispose of letters patent of the United States or any foreign country, patent
rights, licenses and privileges, inventions, improvements and processes, copyrights,
trade-marks and trade names, relating to or useful in connection with any business of this
corporation.
To guarantee, purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of the
shares of the capital stock of or any bonds, securities or evidences of the indebtedness created by
any other corporation or corporations of this state, or any other state or government, and while
owner of such stock, bonds, securities or evidences of indebtedness, to exercise all the rights,
powers and privileges of ownership, including the right to vote, if any.
To borrow money and contract debts when necessary for the transaction of its business, or for the
exercise of its corporate rights, privileges or franchises, or for any other lawful purpose of its
incorporation; to issue bonds, promissory notes, bill of exchange, debentures, and other
obligations and evidences of indebtedness, payable at specified time or times, or payable upon the
happening of a specified event or events, whether secured by mortgage pledge, or otherwise, or
unsecured, for money borrowed, or in payment for property, purchased, or acquired, or for any other
lawful objects.
To purchase, hold, sell and transfer shares of its own capital stock, and use therefor its
capital, capital surplus, surplus, or other property or funds; provided it shall not use its
funds or property for the purchase of its own shares of capital stock when such use would
cause any impairment of its capital; and provided further, that shares of its own capital
stock belonging to it
shall not be voted upon, directly or indirectly, nor counted as outstanding,
for the purpose of computing any stockholders quorum or vote.
To conduct business, have one or more offices, and hold, purchase, mortgage and convey real
and personal property in this state, and in any of the several states, territories,
possessions and dependencies of the United States, the District of Columbia, and in any
foreign countries.
To do all and everything necessary and proper for the accomplishment of the objects
hereinbefore enumerated or necessary or incidental to the protection and benefit of
the corporation, and, in general, to carry on any lawful business necessary or
incidental to the attainment of the objects of the corporation, whether or not such
business is similar in nature to the objects hereinbefore set forth.
The objects and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in nowise limited or restricted by reference to, or inference from the terms
of any other clause in these articles of incorporation, but the objects and purposes
specified in each of the foregoing clauses of this article shall be regarded as independent
objects and purposes.
FOURTH: The amount of the total authorized capital stock of the corporation is Two
Hundred Thousand Dollars ($200,000) consisting of two hundred thousand (200,000) shares of
stock of the par value of One Dollar ($1.00) each.
FIFTH: The governing board of this corporation shall be known as directors, and the number of
directors may from time to time be increased or decreased in such manner as shall be provided by
the by-laws of this corporation, provided that the number of directors shall not be reduced to less
than three (3), except that in cases where all the shares of the corporation are owned beneficially
and of record by either one or two stockholders,
the number of directors may be less than three (3) but not less than the number of
stockholders.
The names and post office addresses of the first board of directors, which shall be
three (3) in number, are as follows:
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NAME |
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POST OFFICE ADDRESS |
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Tom J. Fatjo, Jr.
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1603 Fannin Bank Building |
|
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Houston, Texas 77025 |
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Roger A. Ramsey
|
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1603 Fannin Bank Building |
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Houston, Texas 77025 |
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Norman A. Myers
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1603 Fannin Bank Building |
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Houston, Texas 77025 |
SIXTH: The capital stock, after the amount of the subscription price, or par
value has been paid in shall not be subject to assessment to pay the debts of the
corporation.
SEVENTH: The name and post office address of each of the incorporators signing the
articles of incorporation are as follows:
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NAME |
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POST OFFICE ADDRESS |
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K. S. Hood II
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811 Dallas Avenue |
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Houston, Texas 77002 |
|
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E. W. Patterson
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811 Dallas Avenue |
|
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Houston, Texas 77002 |
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T. F. Elkin
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811 Dallas Avenue |
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Houston, Texas 77002 |
EIGHTH: The corporation is to have perpetual existence.
NINTH: In furtherance, and not in
limitation of the powers conferred by statute, the board of directors is expressly authorized;
Subject to the bylaws, if any, adopted by the stockholders,
to make, alter or amend the bylaws of the corporation.
To fix the amount to be reserved as working capital over and above its capital
stock paid in, to authorize and cause to be executed mortgages and liens upon the real
and personal property of this corporation.
By resolution passed by a majority of the whole board, to designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, which, to the extent provided in the resolution or in the bylaws of the
corporation, shall have and may exercise the powers of the board of directors in the
management of the business and affairs of the corporation, and may authorize the seal of
the corporation to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the bylaws of the
corporation or as may be determined from time to time by resolution adopted by the board
of directors.
When and as authorized by the affirmative vote of stockholders holding stock
entitling them to exercise at least a majority of the voting power given at a
stockholders meeting called for that purpose, or when authorized by the written consent
of the holders of at least a majority of the voting stock issued and outstanding, the
board of directors shall have
power and authority at any meeting to sell, lease or exchange
all of the property and assets of the corporation, including its good will and its corporate
franchises, upon such terms and conditions as its board of directors deem expedient and for the
best interests of the corporation.
TENTH: Meetings of stockholders may be held outside the State of Nevada, if the bylaws so
provide. The books of the corporation may be kept (subject to any provision contained in the
statutes) outside the State of Nevada at such place or places as may be designated from time to
time by the board of directors or in the bylaws of the corporation.
ELEVENTH: This corporation reserves the right to amend, alter, change or repeal any provision
contained in the articles of incorporation, in the manner now or hereafter prescribed by statute,
or by the articles of incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of Nevada, do make and
file these articles of incorporation, hereby declaring and certifying that the facts herein stated
are true, and accordingly have hereunto set our hands this 30th day of July, 1974.
|
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K. S. Hood II |
|
|
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K. S. Hood II |
|
|
|
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E. W. Patterson |
|
|
|
|
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E. W. Patterson |
|
|
|
|
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T. F. Elkin |
|
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T. F. Elkin |
|
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STATE OF TEXAS |
|
|
) |
|
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) |
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SS
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COUNTY OF HARRIS |
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) |
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|
On this 30th day of July, 1974, before me a Notary Public, personally appeared K.
S. Hood II, E. W. Patterson, and T. F. Elkin, who severally acknowledged that they executed
the above instrument.
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Glenmary Russell
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|
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|
Notary Public |
|
|
|
|
(Stamp) |
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|
exv3w322
Exhibit 3.322
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1 . Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2 . Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to
a resolution adopted by a majority of the entire Board of Directors (whether or not there
exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to
each stockholder entitled to vote at such meeting. Business transacted at all Special Meetings
shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if
after the adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5 . Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list
of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days
(or any longer period required by law) prior to the meeting, either at a place within the city
where the meeting is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall
have and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers.
Any number of offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from to time. The officers
of the Corporation need not be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and
except that the other officers of the Corporation may sign and execute documents when so
authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or the
President. The President shall also perform such other duties and may exercise such other powers as
from time to time may be assigned to him by these Bylaws, the Chairman of the Board of Directors or
by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or, from time to time, when the Board of Directors so requires,
an account of all his transactions as Treasurer and of the financial condition of the Corporation.
If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date, In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or
abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to
Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in its favor by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties,
or on the advice of legal counsel for the Corporation or another enterprise or on information
or records given or reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term another enterprise as used in this Section 4 of this
Article VIII shall mean any other corporation or any partnership, limited liability company, joint
venture, trust, employee benefit plan or other enterprise of which such person is or was serving at
the request of the Corporation as a director, officer, employee or agent. The provisions of this
Section 4 of this Article VIII shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such
office, it being the policy of the Corporation that indemnification of the persons specified
in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the indemnification of any person
who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has
the power or obligation to indemnify under the provisions of the applicable state law of the state
of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of
such meeting of stockholders or Board of Directors, as the case may be. Except as otherwise
provided in the Certificate of Incorporation, all such amendments must be approved by either the
holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of
the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w323
Exhibit 3.323
FILED
In the office of the Secretary of State
of the State of California
May 4 1972
[ILLEGIBLE]
ARTICLES OF INCORPORATION
OF
BPI WASTE SYSTEMS OF SOUTHERN CALIFORNIA, INC.
We, the undersigned, do hereby voluntarily associate ourselves for the purpose of forming a stock
corporation under the laws of the State of California, and we hereby certify:
FIRST: The name of this corporation is BPI WASTE SYSTEMS OF SOUTHERN CALIFORNIA, INC.
SECOND: (A) The specific business in which this corporation is primarily to engage is to
collect, transport, dispose of, and otherwise deal with solid and other waste materials of all
kinds and descriptions.
(B) The general purposes and powers of this corporation are as follows:
1. To take, purchase, contract for,
design, construct, manufacture, lease or otherwise acquire to own,
hold, use, operate and maintain and to sell, lease,
exchange, hypothecate or otherwise dispose of or deal in equipment, machinary, tools,
parts, plants, factories, ware-houses and any other products, commodities or facilities.
2. To make, enter into, perform, carry out and enforce contracts, understandings and
agreements of every kind, character and description for any lawful purpose, without limit
as to amount, with any one or more individual, partnerships, firms, associations, trusts
or corporations, or with governments or governmental authorities or agencies, whether
foreign, federal, state, municipal, local or otherwise, or with any public or municipal
corporations.
[ILLEGIBLE]
3. To take, purchase, contract for or acquire, by gift, lease, grant, exchange, permit or
otherwise, to own, hold, use, occupy, manage, control, work, improve, develop, exploit,
operate, subdivide, deal in or otherwise turn to account, and to sell, lease, exchange,
grant, convey, transfer, assign, mortgage, deed in trust or otherwise hypothecate or
dispose of real estate and real property and any estate, right, title or interest therein
and any buildings, tenements, structures and improvements of whatsoever nature thereon,
wheresoever situated.
4. To take, purchase, contract for, lease or otherwise acquire, to own, hold, use,
possess, control and improve, to sell, lease, exchange, grant, transfer, assign, deal in
or otherwise turn to account and to mortgage, deed in trust, pledge or otherwise
hypothecate or dispose of goods, wares, merchandise, products, articles and other personal
property of every kind, class, character and description, tangible or intangible,
wheresnever situated.
5. To obtain, secure and accept from any governments or governmental authorities or
agencies, whether foreign, federal, state, municipal, local or otherwise, or from any
public or municipal corporations, any rights, privileges, franchises, immunities,
concessions, permits, licenses and grants, and to carry out, exercise, enforce and enjoy,
and to assign, relinguish, transfer or otherwise dispose of the same.
6. To form, promote, subsidize, organize, enter into, control, or participate in
corporations, joint stock companies, trusts, associations, general or limited
partnerships, joint ventures, firms and other organizations.
7.
To take, purchase, contract for, or otherwise acquire, and to own, hold, possess,
enjoy or
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otherwise turn to account debts, claims, demands, judgments and choses and things in action of
every kind, class, character and description, and while the owner or holder thereof to
exercise all of the rights, powers, privileges and remedies of or incident to ownership or
possession, including the right to enforce payment and to compromise or to forgive the same,
and to sell, assign, transfer, deliver, exchange or otherwise dispose of the same, either as
security or absolutely, to the same extent as a natural person might or could do.
8. To develop, apply for, obtain, register, purchase, lease or otherwise acquire, and to own,
hold, use, exercise, develop, ,maintain, operate and introduce, and to sell, assign, grant
licenses, territorial rights or other rights in respect of or otherwise turn to account or
dispose of any copyrights, trade marks, trade names, brands, labels or other distinctive marks
similar thereto, patent rights, letters patent of the United States or of any other country or
government, and any inventions, improvements, processes, formulas and the like, whether used in
connection with or secured under letters patent or otherwise.
9. To purchase, subscribe for or otherwise acquire; to hold, invest in, sell, assign,
transfer, exchange, pledge or otherwise dispose of shares of stock, bonds, voting trust
certificates or other securities or evidence of indebtedness or ownership of any corporation
organized under the laws of the State of California or of any other state, country, nation or
government: to pay therefor, in whole or in part, with cash or other property or with shares,
bonds or other securities or obligations of this corporation, and, while the owner or holder
thereof, to possess and exercise in respect thereof all the rights, powers foreign countries.
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16. To have and to exercise all the powers conferred by the laws of California upon corporations
formed under the laws pursuant to and under which this corporation is formed, as such
laws are now in effect or may at any time hereafter be amended.
The foregoing statement of purposes shall be construed an a statement of both purposes and
powers, and the purposes and powers stated in each clause shall, except where otherwise
expressed, be in nowise limited or restricted by reference to or
inference from the terms or
provisions of any other clause, but shall be regarded as independent purposes and powers.
THIRD: The county in the State of California where the principal office for the
transaction of business of this corporation is to be located is Los Angeles.
FOURTH: The number of directors of this corporation shall be three. The names and
addresses of the persons who are appointed to act as the first directors of this corporation
are:
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George E. N. Blake
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22138 South Vermont
Torrance, California 90502 |
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Alvin L. Prather
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22138 South Vermont
Torrance, California 90502 |
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Roy W. Olson
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22138 South Vermont
Torrance, California 90502 |
FIFTH: This corporation is authorized to issue only one class of shares of stock
called Common Stock. The total number of such authorized shares shall be one thousand
(1,000). Each of such shares shall have a par value of Ten dollars ($10.00), and the aggregate
per value of all such shares shall be Ten Thousand Dollars ($10,000,00). No
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distinction shall exist between the shares of this corporation or between the holders thereof.
IN WITNESS WHEREOF, for the purposes of forming this corporation under the laws of the State of
California the undersigned incorporators, who are also the first Directors of this Corporation,
have executed these Articles of Incorporation this 3rd day of May, 1972.
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/s/ George E. W. Blake
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George E. W. Blake |
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/s/ Alvin L. Prather
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Alvin L. Prather |
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/s/ Roy W. Olson
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Roy W. Olson |
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STATE OF CALIFORNIA
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ss. |
COUNTY OF LOS ANGELES
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On May 3rd, 1972, before me, the undersigned, a Notary Public in and for said County and State,
personally appeared GEORGE E. W. BLAKE, ALVIN L. PRATHER and ROY W. OLSON, known to me to be
the persons whose names are subscribed to the foregoing Articles of Incorporation, and
acknowledged to me that they executed the same.
WITNESS my hand and official seal.
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/s/ [ILLEGIBLE] |
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Notary Public in and for said County and State
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- 8 -
FILED
In the office of the Secretary of State
of the State of California
Oct 3 1972
[ILLEGIBLE]
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
GEORGE E. W. BLAKE and ROY W. OLSON certify:
1. That they are the president and the secretary, respectively, of BFI Waste Systems of Southern
California, Inc., a California corporation.
2. That the By-Laws of said corporation authorize the directors to adopt resolutions amending its
Articles of Incorporation by unanimous written consent without a meeting; heretofore, by unanimous
written consent without a meeting, the directors adopted a resolution amending the Articles of
Incorporation as follows:
RESOLVED: that Article First of the Articles of Incorporation of this corporation be amended to
read as follows:
The name of this corporation is BROWNING-FERRIS INDUSTRIES OF SOUTHERN CALIFORNIA, INC.
3. That the shareholders have adopted said amendment by written consent. That the wording of the
amended article, as set forth in the shareholders written
consent, is the same as that set forth
in the directors resolution in Paragraph 2 above.
4. That
the number of shares represented by written consent is 100. That the total number of shares
entitled to vote on or consent to the amendment is 100.
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/s/ George E. W. Blake
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George E. W. Blake |
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/s/ Roy W. Olson
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Roy W. Olson |
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Each of the undersigned declares under penalty of perjury that the matters set forth in the
foregoing certificate are true and correct. Executed at Los Angeles, California, on September 22,
1972.
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/s/ George E. W. Blake
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George E. W. Blake |
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/s/ Roy W. Olson
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Roy W. Olson |
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- 2 -
Exhibit 3.323
FILED
In the office of the Secretary of State
of the State of California
OCT 20 1972
[ILLEGIBLE]
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By
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/s/ [ILLEGIBLE]
Deputy
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MA CHO TO:
BHOWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC.
CERTIFICATE OF AMENDMENT
OF
ARTICLES
OF INCORPORATION
GEORGE E.
W. BLAKE and ROY W. OLSON certify:
1. That they are the president and secretary, respectively, of
Browning-Ferris Industries of Southern California, Inc., a California
corporation.
2. That
the By-Laws of said corporation authorize the directors to adopt
resolutions amending its Articles of Incorporation by unanimous written consent without
a meeting; heretofore, by unanimous written consent without a meeting, the directors
adopted a resolution amending the Articles of Incorporation as follows:
RESOLVED:
that Article First of the Articles of Incorporation of
this corporation be amended to read as follows:
The name of this
corporation is BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC.
3. That
the shareholders have adopted said Amendment by written consent. That
the wording of the amended article, as set forth in the shareholders written consent,
is the same as that set forth in the directors resolution in Paragraph 2 above.
4. That
the number of shares represented by written consent is 100. That
the total number of shares entitled to vote on or consent to the
amendment is 100.
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/s/ George E. W. Blake
George E. W. Blake
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/s/ Roy W. Olson
Roy W. Olson
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Each of the undersigned declares under
penalty of perjury that the matters set forth in
the foregoing certificate are true and correct. Executed at Los Angeles, California on
October 20, 1972
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/s/ George E. W. Blake
George E. W. Blake
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/s/ Roy W. Olson
Roy W. Olson
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-2-
exv3w324
Exhibit 3.324
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1.
General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board
of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article III, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article III, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article III, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article III), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w325
Exhibit 3.325
ooOoo
Browning-Ferris Industries of Florida, Inc.
ooOoo
ooOoo
CORPORATE RECORDS
ooOoo
ooOoo
REGISTERED
WITH
THE CORPORATION TRUST COMPANY
WILMINGTON, DELAWARE
ooOoo
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES OF FLORIDA, INC.
ooOoo
First: The name of the Corporation is Browning-Ferris Industries of Florida, Inc.
Second: The registered office of the Corporation in the State of Delaware is located at 100
West Tenth Street in the City of Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware
19801.
Third: The nature of the business, objects and purposes to be transacted, promoted or
carried on by the Corporation are:
To collect, process, haul and dispose of refuse and waste of all types, to operate sanitary
landfills and other sites, and to perform other procedures, for the disposal of refuse and waste,
and to furnish consulting services as to methods of such collection, processing and disposal of
refuse and waste and the operation of such sites and performance of such procedures;
To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign
and transfer or otherwise dispose of, trade, deal in and with, as principal, agent or otherwise,
machinery, equipment and other goods, wares and merchandise and personal property of every class
and description;
To acquire, and pay for in cash, stocks or bonds of the Corporation or otherwise, the good
will, rights, assets and property, and to undertake or assume the whole or any part of the
obligations or liabilities of any person, partnership, trust, joint stock company, syndicate, firm,
association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or
otherwise dispose of letters patent of the United States or any foreign country, patent rights,
licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade
names, relating to or useful in connection with any business of the Corporation;
To acquire by purchase, subscription or otherwise, and to receive, hold, own, sell, assign,
exchange, transfer, mortgage, pledge or otherwise dispose of or deal in and with any of the shares
of the capital stock, or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts and
other securities, obligations, choses in action and evidences of indebtedness or interest issued or
created by any corporations, joint stock companies, syndicates, associations, firms, trusts or
persons, public or private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other political subdivision or by
any governmental agency, and as owner thereof to possess and exercise all the rights, powers and
privileges of ownership, including the right to execute consents and vote thereon, and to do any
and all acts and things necessary or advisable for the preservation, protection, improvement and
enhancement in value thereof;
To borrow or raise moneys for any of the purposes of the Corporation and, from time to time
without limit as to amount, to draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds, debentures and other negotiable or
non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the whole or any
part of the property of the Corporation, whether at the time owned or thereafter acquired, and to
sell, pledge or otherwise dispose of such bonds or other obligations of the Corporation for its
corporate purposes;
To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise
acquire, own, hold, improve, employ, use and otherwise deal in and with, real or personal property,
or any interest therein, wherever situated, and to sell, convey, lease, exchange, transfer or
otherwise dispose of, or mortgage or pledge, all or any of the Corporations property and assets,
or any interest therein, wherever situated; and
To engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation, but the business and purposes specified in each
of the foregoing clauses of this article shall be regarded as independent business and purposes.
Fourth: The total number of shares of stock which the corporation shall have authority to
issue is one thousand (1,000) and the par value of each of such shares is One Dollar ($1.00)
amounting in the aggregate to One Thousand Dollars ($1,000.00).
Fifth: The name and mailing address of each incorporator is as follows:
|
|
|
NAME |
|
MAILING ADDRESS |
B. A. Pennington
|
|
100 West Tenth Street |
|
|
Wilmington, Delaware 19801 |
|
|
|
W. J. Reif
|
|
100 West Tenth Street |
|
|
Wilmington, Delaware 19801 |
|
|
|
R. F. Andrews
|
|
100 West Tenth Street |
|
|
Wilmington, Delaware 19801 |
Sixth: The Corporation is to have perpetual existence.
Seventh: In furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized:
(1) To make, alter or repeal the by-laws of the Corporation.
(2) To authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation.
(3) To set apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for any proper purpose and to abolish any such reserve in the manner in
which it was created.
(4) By a majority of the whole Board of Directors,
to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the extent provided in
the resolution or in the by-laws of the Corporation, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of any member of such
committee or committees the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent or disqualified
member.
(5) When and as authorized by the affirmative vote of the holders of a majority of the stock
issued and outstanding having voting power given at a stockholders meeting duly called upon such
notice as is required by statute, or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell, lease or exchange all or substan-
tially all the property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such consideration, which may
consist in whole or in part of money or property including securities of any other
corporation or corporations, as the Board of Directors shall deem expedient and for the best
interests of the Corporation.
Eighth: Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be, agree to any
compromise or arrangement and to any reorganization of the Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if
sanctioned by the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the
Corporation, as the case may be, and also on the Corporation.
Ninth: Meetings of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the Corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation. Elections of directors
need not be by written ballot unless the by-laws of the Corporation shall so provide.
Tenth: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make
this certificate, hereby declaring and certifying that this is our act and deed and the facts
herein stated are true, and accordingly have hereunto set our hands this 18th day of February,
1975.
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B. A. Pennington |
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W. J. Reif |
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R. F. Andrews |
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STATEMENT OF INCORPORATORS
IN LIEU OF ORGANIZATION
MEETING
OF
Browning-Ferris Industries of Florida, Inc.
ooOoo
The certificate of incorporation of this corporation having been filed in the
office of the Secretary of State, the undersigned, being all of the incorporators named in
said certificate, do hereby state that the following actions were taken on this day for the
purpose of organizing this corporation:
1. The following persons were elected as directors to hold office until the first annual
meeting of stockholders or until their respective successors are elected and qualified:
Tom J. Fatjo, Jr.
Roger A. Ramsey
Norman A. Meyers
2. The board of directors was authorized to make and adopt the by-laws of the corporation and,
in its discretion, to issue the shares of the capital
stock of this corporation to the full amount or number of shares authorized by the certificate of
incorporation, in such amounts and for such considerations as from time to time shall be determined
by the board of directors and as may be permitted by law.
Dated, February 18th, 1975.
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/s/ B. A. Pennington
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Incorporator |
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/s/ W. J. Reif
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Incorporator |
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/s/ R. F. Andrews
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Incorporator |
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exv3w326
Exhibit 3.326
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF FLORIDA, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common
stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w327
Exhibit 3.327
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
BFI of Illinois, Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the Company), does hereby certify:
First: That the Sole Director and Sole Shareholder of the Company duly adopted by
written consent on February 18, 1999, resolutions declaring the following amendment
to the certificate of incorporation of the Company:
RESOLVED, the Article 1 of the Companys certificate of incorporation is
hereby amended to read as follows:
The name of the corporation is
Browning-Ferris Industries of Illinois, Inc.,
; and
RESOLVED FURTHER, that the President or any Vice President of the
Company, be, and each hereby is, authorized and directed to sign any
and all documents necessary to effectuate the change in the name of the
Company.
Second: That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware.
Third: That the capital of the Company shall not be reduced under or by reason of
said amendment.
IN WITNESS WHEREOF, the Company has caused its corporate seal to be hereunto affixed and
the certificate be signed by Eileen B. Schuler, its Vice President, the 18th day of February,
1999.
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BFI OF ILLINOIS, INC.
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By: |
/s/ Eileen B. Schuler
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Eileen B. Schuler |
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Title: |
Vice President |
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CERTIFICATE OF INCORPORATION
OF
BFI of Illinois, Inc.
*****
1. |
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The name of the corporation is BFI of Illinois, Inc. |
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2. |
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The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation Trust
Company. |
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3. |
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The nature of the business or purposes to be conducted or promoted is: |
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To engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law of Delaware. |
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4. |
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The total number of shares of stock which the corporation shall have authority
to issue is one thousand (1,000) and the par value of each of such shares is one
dollar ($1.00), amounting in the aggregate to one thousand dollars ($1,000.00). |
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5A. |
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The name and mailing address of the sole incorporator is as
follows: |
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Mike DeSilva
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811 Dallas Avenue, Houston, TX 77002 |
5B. |
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The name and mailing address of each person, who is to serve as a director
until the first annual meeting of the stockholders or until a successor is elected
and qualified, is as follows: |
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Eileen B. Schuler
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P. O. Box 3151, Houston, TX 77253 |
6. |
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The corporation is to have perpetual existence. |
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I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of
Delaware, do make this certificate, hereby declaring and certifying that this is my
act and deed and the facts herein stated are true, and accordingly have hereunto set
my hand this 5th day of February, 1999. |
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/s/ Mike DeSilva
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Mike DeSilva |
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exv3w328
Exhibit 3.328
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call
for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of
Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w329
Exhibit 3.329
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES OF NEW JERSEY, INC.
To: The Secretary of State
State of New Jersey
THE UNDERSIGNED, of the age of eighteen years or over, for the purpose of forming a
corporation pursuant to the provisions of Title 14A, Corporations, General, of the New Jersey
Statutes, do hereby execute the following Certificate of Incorporation:
FIRST: The name of the corporation is BROWNING-FERRIS INDUSTRIES OF NEW JERSEY,
INC.
SECOND: The purpose or purposes for which the corporation is organized are:
To engage in any activity within the lawful business purposes for which corporations may be
organized under the New Jersey Business Corporation Act.
THIRD: The aggregate number of shares which the corporation shall have authority to issue is
one thousand (1,000) of the par value of One Dollar ($1.00) each.
FOURTH: The address of the corporations initial registered office is 15 Exchange Place,
Jersey City, New Jersey 07302, and the name of the corporations initial registered agent at such
address is The Corporation Trust Company.
FIFTH: The number of directors constituting the initial board of directors shall be three;
and the names and addresses of the directors are as follows:
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Names |
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Addresses |
Tom J. Fatjo, Jr.
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Fannin Bank Building |
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Houston, Texas 77025 |
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Norman A. Myers
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Fannin Bank Building |
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Houston, Texas 77025 |
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Roger A. Ramsey
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Fannin Bank Building |
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Houston, Texas 77025 |
SIXTH: The names and addresses of the incorporators are as follows:
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Names |
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Addresses |
E. Wayne Patterson
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811 Dallas Avenue |
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Houston, Texas 77002 |
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Phillip D. Tucker
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811 Dallas Avenue |
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Houston, Texas 77002 |
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Kirk S. Hood II
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811 Dallas Avenue |
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Houston, Texas 77002 |
In Witness Whereof, we, the incorporators of the above named corporation, have hereunto signed
this Certificate of Incorporation on the 19 day of April, 1974.
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E. Wayne Patterson
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E. Wayne Patterson |
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Phillip D. Tucker
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Phillip D. Tucker |
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Kirk S. Hood II
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Kirk S. Hood II |
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-2-
exv3w330
Exhibit 3.330
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF NEW JERSEY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in
his absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Executive Vice President, or if there is no Executive Vice President, the
Vice President or the Vice Presidents if there are more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article
VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w331
Exhibit 3.331
CERTIFICATE OF INCORPORATION
OF
T. PEDONE & SONS, INC.
PURSUANT TO SECTION 402 OF THE BUSINESS CORPORATION LAW
We, the undersigned, desiring to form a corporation pursuant to Section 402 of the Business
Corporation Law of the State of New York, do hereby make, subscribe and acknowledge
this Certificate for that purpose as follows:
FIRST. The name of the proposed corporation is
T. PEDONE & SONS, INC.
SECOND. The purposes for which said corporation is to be formed are to do any and all
of the things hereinafter set
forth to the same extent as natural persons might or could do; viz:
To conduct the business of collecting
garbage and other refuse and of disposing of
the same.
To collect, acquire, hold; remove, make use of and dispose
of in any lawful manner refuse of every nature, consumable or
unconsumable, liquid or solid.
To manufacture, purchase or otherwise acquire, deal in, use,
sell or otherwise dispose
of and to install, operate, maintain and repair incenerator, garbage and
refuse disposal machines, devices and plants, and any and all materials,
products and machinery useful in the manufacture, use and sale of such commodities.
To bid upon, enter into and carry
out contracts for the construction of sewage
plants, sewage disposal systems, drainage
systems, waste removal systems and irrigation
systems.
To do anything else necessary or incidental to the carrying on of the
business of collecting and disposing of garbage and refuse.
THIRD. The total number of shares that may be issued
is Two Hundred (200), all of which are to be without par value.
FOURTH. The shares shall be
designated common stock.
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FIFTH. The office of the corporation shall be located in the City and
County of Schenectady, State of New York.
SIXTH. The Secretary of State is hereby designated as
the agent of the corporation upon whom process in any action or
proceeding against it may be served within the State of New York.
The address to which the Secretary of State shall mail a copy of process
served upon him pursuant to law is 821 Gerling Street, Schenectady, New York, 12308.
IN WITNESS WHEREOF, we have made and subscribed this
certificate this 29th day of December, 1964.
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/s/ ANGELO PEDONE
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ANGELO PEDONE |
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821 Gerling Street
Schenectady, New York |
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/s/ VINCENT PEDONE
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VINCENT PEDONE |
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1445 Lowell Road
Schenectady, New York |
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STATE OF NEW YORK
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ss. : |
COUNTY OF ALBANY
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On this 29th day of December, 1964 before me, the subscriber personally appeared ANGELO PEDONE and VINCENT PEDONE, to
me personally known and known to me to be the same persons
described in and who executed the within Instrument and they
duly and severally acknowledged to me that they executed the same.
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/s/ [ILLEGIBLE]
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NOTARY PUBLIC |
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R*385-Certificate of Amendment of Certificate of Incorporation; Business Corporation Law 1805 |
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Copyright 1943 by Julius Blumberg, Inc, Law Blank Publishers so Exchange Place at Broadway, New York |
Certificate of Amendment of the Certificate of Incorporation of
T. PEDONE & SONS, INC.
under Section 805 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
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The name of the corporation is T. PEDONE & SONS, INC. |
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(2) |
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The certificate of incorporation was filed by the department of state on the 4th
day of February 1965 |
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The certificate of incorporation of this corporation is hereby amended to effect the
following change |
a. to change the corporate name. Paragraph One of the certificate
is amended to read:
1. The name of the Corporation is MODERN WASTE SERVICE, INC.
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The amendment to the certificate of incorporation was authorized: |
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at a meeting of shareholders by vote of a majority of all the outstanding shares
entitled to vote thereon. |
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CERTIFICATE OF MERGER
OF
PEDONE BROTHERS, INC. and
MODERN WASTE SERVICE, INC.
INTO
MODERN WASTE SERVICE, INC.
Under Section 904 of the Business Corporation Law
The undersigned, ROGER A. RAMSEY and HOWARD S. HOOVER, JR.,
being the Vice President and Assistant Secretary, respectively, of
Modern Waste Service, Inc. and Pedone Brothers, Inc., each of said
corporations being domestic corporations, organized and existing under and by virtue of the
laws of the State of New York, do hereby certify
and set forth:
1. The Plan of Merger was adopted by the Board of Directors
of each constituent corporation and authorized and approved by the
Stockholders of each respective constituent corporation.
2. The name of each constituent corporation is as follows:
PEDONE BROTHERS, INC.
MODERN WASTE SERVICE, INC.
The name under which Modern Waste Service, Inc. was formed is T. Pedone & Sons, Inc.
3. The name of the surviving corporation is Modern Waste
Service, Inc.
4. Pedone Brothers, Inc. has issued and outstanding 100
shares of no par value common stock, all of which constitute but one
class of stock and are entitled to vote.
Modern Waste Service, Inc. has issued and outstanding 200
shares of no par value common stock, all of which constitute but one class of stock and are
entitled to vote.
5. The Certificate of Incorporation of the surviving corporation, Modern Waste Service,
Inc., is hereby amended to change the name of said corporation to BROWNING-FERRIS INDUSTRIES OF NEW
YORK, INC.
Article FIRST of the Certificate of Incorporation of Modern Waste Service, Inc.
is hereby amended to read as follows:
The name of the corporation is Browning-Ferris Industries of New
York, Inc.
6. The effective date of the merger of Pedone Brothers, Inc. and Modern Waste Service,
Inc. into Modern Waste Service, Inc. is the
30th day of September, 1973.
7. The Certificate of Incorporation of Pedone Brothers, Inc.
was filed by the Department of State on the 1st day of April, 1963.
The Certificate of
Incorporation of Modern Waste Service,
Inc. was filed by the Department of State on the 4th day of February,
1965.
8. The merger of Pedone Brothers, Inc., and Modern Waste
Service, Inc. was authorized: (a) in respect to Pedone Brothers, Inc., a constituent
corporation by the affirmative vote of the holders of two-thirds (2/3) of all outstanding shares
entitled to vote; and (b) in respect to Modern Waste Service, Inc. by the affirmative vote of the
holders of two-thirds (2/3) of all outstanding shares entitled to vote.
- 2 -
IN WITNESS WHEREOF, the undersigned have executed this
Certificate this 20th day of September, 1973, and we affirm the statements contained herein as true under penalties of perjury.
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PEDONE BROTHERS, INC.
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BY |
/s/ Roger A. Ramsey
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Roger A. Ramsey, Vice President |
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BY |
/s/ Howard S. Hoover
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Howard S. Hoover, Assistant Secretary |
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MODERN WASTE SERVICE, INC.
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BY |
/s/ Roger A. Ramsey
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Roger A. Ramsey, Vice President |
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BY |
/s/ Howard S. Hoover
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Howard S. Hoover, Assistant Secretary |
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STATE OF TEXAS
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SS. : |
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COUNTY OF HARRIS
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ROGER A. RAMSEY and HOWARD S. HOOVER, each being duly sworn, does for himself
depose and say that he is the Vice President and Assistant Secretary, respectively, of Modern Waste
Service, Inc. and Pedone Brothers, Inc., each corporation named and described in the foregoing Certificate; that he has read the foregoing Certificate, that
he knows the contents
thereof, and that the same is true of his own knowledge.
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/s/ Roger A. Ramsey
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Roger A. Ramsey |
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/s/ Howard S. Hoover
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Howard S. Hoover |
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Sworn to before me this
20th day of September, 1973.
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/s/ Carole J. Gifford
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Notary Public Carole J. Gifford |
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Commission Expires June 1, 1975 |
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- 4 -
exv3w332
Exhibit 3.332
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF NEW YORK, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article
VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w333
Exhibit 3.333
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES OF OHIO, INC.
First: The name of the Corporation is Browning-Ferris Industries of Ohio, Inc.
Second: The registered office of the Corporation in the State of Delaware is located at 100
West Tenth Street in the City of Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware.
Third: The nature of the business, objects and purposes to be transacted, promoted
or carried on by the Corporation are:
To collect, process, haul and dispose of refuse and waste of all types, to
operate sanitary landfills and other sites, and to perform other procedures, for the
disposal of refuse and waste, and to furnish consulting services as to methods of
such collection, processing and disposal of refuse and waste and the operation of
such sites and performance of such procedures;
To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge,
sell, assign and transfer or otherwise dispose of, trade, deal in and with, as principal,
agent or otherwise, machinery, equipment and other goods, wares and merchandise and
personal property of every class and description;
To acquire, and pay for in cash, stocks or bonds of the Corporation or otherwise, the
goodwill, rights, assets and property, and to undertake or assume the whole or any part of
the obligations or liabilities of any person, partnership, trust, joint stock company,
syndicate, firm, association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any foreign
country, patent rights, licenses and privileges, inventions, improvements and
processes, copyrights, trademarks and trade names, relating to or useful in
connection with any business of the Corporation;
To acquire by purchase, subscription or otherwise, and to
receive, hold, own, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the shares
of the capital stock, or any voting trust certificates in respect of the shares of
capital stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts and
other securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies, syndicates,
associations, firms, trusts or persons, public or private, or by the government of the
United States of America, or by any foreign government, or by any state, territory,
province, municipality or other political subdivision or by any governmental agency,
and as owner thereof to possess and exercise all the rights, powers and privileges of
ownership, including the right to execute consents and vote thereon, and to do any and
all acts and things necessary or advisable for the preservation, protection,
improvement and enhancement in value thereof;
To borrow or raise moneys for any of the purposes of the Corporation and, from
time to time without limit as to amount, to draw, make, accept, endorse, execute and
issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and
other negotiable or non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any part of the property of
the Corporation, whether at the time owned or thereafter acquired, and to sell, pledge
or otherwise dispose of such bonds or other obligations of the Corporation for its
corporate purposes;
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease, or otherwise acquire, own, hold, improve, employ, use and otherwise deal
in and with, real or personal property, or any interest therein, wherever
situated, and to sell, convey, lease, exchange, transfer or otherwise dispose
of, or mortgage or pledge, all or any of the Corporations property and assets,
or any interest therein, wherever situated; and
To engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation, but the business and purposes specified in each
of the foregoing clauses of this article shall be regarded as independent business and purposes.
2
Fourth: The total number of shares of all classes of stock which the
Corporation shall be authorized to issue is 2,000 shares; all of such shares shall
be without par value.
Fifth: The name and mailing address of the incorporator is
|
|
|
Name |
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Mailing Address |
James E. Kline
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700 United Savings Building
Toledo, Ohio 43604 |
Sixth: The Corporation is to have perpetual existence.
Seventh: In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
(1) To make, alter or repeal the by-laws of the Corporation.
(2) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
(3) To set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
(4) By a majority of the whole Board of Directors, to designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The Board of Directors may designate one
or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Any such committee, to the extent
provided in the resolution or in the by-laws of the Corporation, shall have and may
exercise the powers of the Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the Corporation to be affixed
to all papers which may require it; provided, however, the by-laws may provide that in
the absence or disqualification of any member of such committee or committees the member
or members thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or disqualified
member.
(5) When and as authorized by the affirmative vote of the holders of a majority of
the stock issued and outstanding having voting power given at a stockholders
meeting duly called upon such notice as is required by statute,
3
or when authorized by the written consent of the holders of a majority of the voting stock issued
and outstanding, to sell, lease or exchange all or substantially all the property and assets of the
Corporation, including its goodwill and its corporate franchises, upon such terms and conditions
and for such consideration, which may consist in whole or in part of money or property including
securities of any other corporation or corporations, as the Board of Directors shall deem expedient
and for the best interests of the Corporation.
Eighth: Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
Ninth: Meetings of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the Corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation. Elections of
directors need not be by written ballot unless the by-laws of the Corporation shall so provide.
Tenth: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
4
THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, does make this
Certificate, hereby declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 15th day of January, 1973.
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/s/ James E. Kline
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James E. Kline |
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THE STATE OF OHIO
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COUNTY OF LUCAS
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BE IT REMEMBERED that on this 15th day of January, 1973, personally came before me, a
Notary Public for the State of Ohio, James E. Kline, the party to the foregoing certificate of
incorporation, known to me personally to be such, and acknowledged the said certificate to be his
act and deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
5
AGREEMENT OF MERGER
This Agreement of Merger, dated this 27th day of April. 1973, by and among Browning-Ferris
Industries of Ohio, Inc. (BFI), Bradburys Rubbish Disposal, Inc. (Bradbury), BFI Waste Systems
of Ohio, Inc. (Waste Systems). Brotherton Disposal. Inc.
(Brotherton), C & I Refuse, Inc. (C &
I). City Ash, Inc. (City Ash), Granger Leasing, Inc. (Granger), and Quick Trash Service, Inc.
(Quick Trash).
WHEREAS, BFI was incorporated by Certificate of Incorporation filed in the Office of the
Secretary of State of the State of Delaware on January 24, 1973. and presently exists and is in
good standing under the laws of the State of Delaware, has its principal place of business located
in Wilmington, Newcastle County, Delaware, and has an authorized capital consisting of 2,000 shares
of Common Stock, without par value, of which 100 shares were issued
and outstanding on March 1, 1973; and
WHEREAS, Bradbury was incorporated by Articles of Incorporation filed in the Office of
the Secretary of State of the State of Ohio on June 1, 1970, and presently exists and is in
good standing under the laws of the State of Ohio, has its principal place of business in
Cleveland, Cuyahoga County, Ohio, and has an authorized capital consisting of 5,000 shares of
Common Stock, $1.00 par value, of which 1,000 shares were issued and
outstanding as of March 1, 1973; and
WHEREAS, Waste Systems was incorporated by Articles of Incorporation filed in the Office of
the Secretary of State of the State of Ohio on November 20, 1969, and presently exists and is in
good standing under the laws of the State of Ohio, has its principal place of business in
Cincinnati, Hamilton County, Ohio, and has an authorized capital consisting of 10,000 shares of
Common Stock, $10.00 par value, of which 250 shares were issued and
outstanding as of March 1, 1973; and
WHEREAS, Brotherton was incorporated by Articles of Incorporation filed in the Office
of the Secretary of State of the State of Ohio on March 9, 1966, and presently exists and is in
good standing under the laws of the State of Ohio, has its principal place of business in Elyria,
Lorain County, Ohio, and has an authorized capital consisting of 500 shares of Common Stock, no par
value, of which 260 shares were issued and outstanding as of
March 1, 1973; and
WHEREAS, C & I was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on March 21, 1962, and presently exists and is in food
standing under the laws of the State of Ohio, has its principal place
of business in Youngstown, Mahoning County, Ohio, and has an authorized capital consisting of 250 shares of Common Stock, no
par value, of which 5 shares were issued and outstanding as of March 1, 1973; and
WHEREAS, City Ash, was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on August 12, 1970, and presently exists and is in good
standing under the laws of the State of Ohio has its principal place
of business in Cleveland, Cuyahoga County, Ohio, and has an
authorized capital consisting of 500 shares of Common Stock, $1.00
par value, of which 500 shares were issued and outstanding as of March 1, 1973;
WHEREAS, Granger was incorporated by Articles of Incorporation filed in the Office of
the Secretary of State of the State of Ohio on November 4, 1964, and presently exists and is in
good standing under the laws of the State of Ohio, has its principal place of business in Garfield
Heights, Cuyahoga County, Ohio, and has an authorised capital consisting of 500 shares of Common
Stock, of which 100 shares were issued and outstanding as of March 1, 1973; and
WHEREAS, Quick Trash was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on May 22. 1970, and presently exists and is in good
standing under the laws of the State of Ohio, has its principal, place of business in Cincinnati,
Hamilton County, Ohio, and has an authorized capital consisting of 250 shares of Common Stock, no
par value, of which 51 shares of Common Stock were issued and
outstanding as of March 1, 1973: and
WHEREAS,
Section 252 of Chapter 1, General Corporation Law of the State of Delaware authorises
the merger of corporations organized under the laws of the State of Ohio into a corporation which
is organized under the laws of the State of Delaware and Section 1701.79 of the Ohio Revised Code
authorizes the merger of corporations organized under the laws of the State of Ohio into a
corporation organized under the laws of the State of Delaware; and
-2-
WHEREAS, the Boards
of Directors of BFI, Bradbury, Waste Systems, Brotherton, C & I, City
Ash, Granger and Quick Trash deem it advisable for the mutual benefit of each of said corporations
and their respective shareholders that Bradbury, Waste Systems, Brotherton, C & I, City Ash,
Granger and Quick Trash be merged into BFI upon the terms and conditions hereinafter set forth, and
such Boards of Directors have approved this Agreement of Merger;
NOW, THEREFORE, the aforesaid corporations have agreed and do hereby agree each with each
other, that Bradbury, Waste Systems, Brotherton, C & I, City Ash. Granger and Quick Trash shall be
merged into BFI in accordance with the provisions of the General Corporation Law of the State of
Delaware and with the provisions of Chapter 1701, Ohio Revised Code, upon the following terms and
conditions and in the following manner:
ARTICLE I
EFFECTIVE DATE
This Agreement
of Merger shall be filed in the Office of the Secretary of State of Ohio and in
the Office of the Secretary of State of Delaware, and
a copy thereof certified by the
Secretary of State of Delaware shall be recorded in the Office of the Recorder of Deeds for New
Castle County, and shall be effective upon the recording thereof in the Office of the Recorder of
Deeds for New Castle County, and the date of such recording shall be herein called the Effective
Date.
ARTICLE II
MERGER
Bradbury, Waste Systems, Brotherton, C & I,
City Ash, Granger, and Quick Trash (the
Merged Corporations) shall be merged into BFI (the Surviving Corporation) and likewise,
BFI, the Surviving Corporation, shall merge Bradbury, Waste Systems, Brotherton, C & I, City Ash,
Granger, and Quick Trash, the Merged Corporations, into itself on the Effective Date, pursuant to
the provisions of Section 252 and other applicable provisions of Chapter 1, General Corporation Law
of the State of Delaware and pursuant to Section 1701.79 and other applicable provisions of
Chapter 1701 of the Ohio Revised Code, and upon the terms and conditions herein set forth. The
separate corporate existence of Bradbury, Waste Systems, Brotherton, C & I, City Ash, Granger and
Quick Trash, the Merged Corporations, shall cease at the Effective Date, and BFI, which shall
survive the merger, shall continue in existence and shall be governed by the laws of the State of
Delaware. The corporate name of BFI, as the Surviving Corporation, shall continue to be
Browning-Ferris Industries of Ohio, Inc.
-3-
ARTICLE III
ARTICLES OF INCORPORATION OF SURVIVING CORPORATION
The facts required to be set forth in Articles of Incorporation of corporation Incorporated
under the laws of the State of Delaware and that can be stated in the case of the merger provided
for in this Agreement of Merger are as follows:
First: The name of the Corporation
is Browning-Ferris Industries of Ohio, Inc.
Second: The registered office of the Corporation in the State of Delaware is located at 100
West Tenth Street in the City of Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware.
Third: The nature of the business,
objects and purposes to be transacted, promoted or
carried on by the Corporation:
To collect, process, haul and dispose of refuse and waste
of all types, to operate
sanitary landfills and other sites, and to perform other procedures, for the disposal
of refuse and waste, and to furnish consulting services as to methods of such
collection, processing and disposal of refuse and waste and the operation of such
sites and performance of such procedures;
To
manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal in and
with, as principal, agent or otherwise, machinery, equipment and other goods,
wares and merchandise and personal property of every class and description;
To acquire, and pay for in cash, stocks or bonds of the Corporation or otherwise, the
goodwill, rights, assets and property, and to undertake or assume the whole or any
part of the obligations or liabilities of any person, partnership, trust, joint stock
company, syndicate, firm, association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or
otherwise dispose of letters patent of the United States or any foreign country,
patent rights, licenses and privileges, inventions, improvements and processes,
copyrights, trademarks and trade names, relating to or useful in connection with any
business of the Corporation;
-4-
To acquire by purchase,
subscription or otherwise, and to receive, hold, own,
sell, assign, exchange, transfer, mortgage, pledge or otherwise dispose of or deal in
and with any of the shares of the capital stock, or any voting trust certificates in
respect of the shares of capital stock, scrip, warrants, rights, bonds, debentures,
notes, trust receipts and other securities, obligations, choses in action and
evidences of indebtedness or interest issued or created by any corporations, joint
stock companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other political
subdivision or by any governmental agency, and as owner thereof to possess and
exercise all the rights, powers and privileges of ownership, including the right to
execute consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value
thereof:
To borrow or raise moneys for any of
the purposes of the Corporation and, from
time to time without limit as to amount, to draw, make, accept, endorse, execute
and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures
and other negotiable or nonnegotable instruments and evidences of indebtedness, and
to accure the payment of any thereof and of the interest thereon by mortgage upon or
pledge, conveyance or assignment in trust of the whole or any part of the property of
the Corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the Corporation for
its corporate purposes:
To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease,
or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and
with, real or personal property, or any interest therein, wherever situated, and
to sell, convey, lease, exchange, transfer or otherwise dispose of, or
mortgage or pledge, all or any of the Corporations property and assets, or any
interest therein, wherever situated: and
To engage in any lawful act or activity for
which corporations may be organized
under the General Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference
to, or inference from, the terms of any other clause in this Certificate of Incorporation,
-5-
but the business and purposes specified in each of the foregoing clauses of this article shall
be regarded as independent business and purposes.
Fourth: The total number of shares of all classes of stock which the Corporation shall be
authorized to issue is 2,000 shares: all of such shares shall be without par value.
Fifth: The name and mailing address of the incorporator is
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James E. Kline
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700 United Savings Building |
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Toledo, Ohio 43604 |
Sixth: The Corporation is to have perpetual existence.
Seventh: In furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized:
(1) To make, alter or repeal the by-laws of the Corporation.
(2) To authorize and cause to be executed mortgages and liens upon the real and personal
property of the Corporation.
(3) To set apart out of any of the funds of the Corporation available for dividends a
reserve or reserves for any proper purpose and to abolish any such reserve in the manner in which
it was created.
(4) By a majority of the whole Board of Directors, to designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to the extent provided
in the resolution or in the by-laws of the Corporali n, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of any member of such
committee or committees the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(5) When and as authorized by the affirmative vote of the holders of a majority of the stock
issued and outstanding having voting power given at a stockholders meeting duly called upon such
notice as is required by statute, or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell, lease or exchange all or
substantially all the property and assets of the Corporation, including its goodwill and its
corporate franchises, upon
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such terms and conditions and for such consideration, which may consist in whole or in part of
money or property including securities of any other corporation or corporations, as the Board of
Directors shall deem expedient and for the best interests of the Corporation.
Eighth: Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of Section 281 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 278 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
Ninth: Meetings of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the Corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation. Elections of directors
need not be by written ballot unless the by-laws of the Corporation shall so provide.
Tenth: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE IV
BOARD OF DIRECTORS
The following persons shall constitute the Board of Directors of the Surviving Corporation, as
of the Effective Date, each of whom shall hold office until the 1874 annual meeting of shareholders
and until their respective successors are elected and qualified:
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Loren Beck
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530 Glenwood Ave., Youngstown, Ohio 445802 |
Tom J. Patjo, Jr.
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1603 Fannin Bank Bldg.. Houston, Texas 77025 |
Norman A. Myers
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1603 Fannin Bank Bldg., Houston, Texas 77025 |
Roger A. Ramsey
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1603 Fannin Bank Bldg., Houaton. Texas 77025 |
Kenneth Reitzloff
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1603 Fannin Bank Bldg. , Houston, Texas 77025 |
Harry B. Phillips
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1603 Fannin Bank Bldg., Houston, Texas 77025 |
L.A. Waters
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1603 Fannin Bank Bldg., Houston, Texas 77025 |
ARTICLE V
OFFICERS
The first officers of the Surviving Corporation, who shall hold office until
their respective successors have been elected and qualified, are as follows:
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Chairman of the Board:
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L. A. Waters |
President:
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Barry J. Phillips |
Chairman of the Executive Committee:
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Tom J. Patjo, Jr. |
Executive Vice President:
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Kenneth Reilzloff |
Executive Vice President:
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Roger A. Ramsey |
Executive Vice President:
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Loren Beck |
Vice President and General Manager-City
Ash District:
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Cacil Medrick |
Vice President and General Manager -
Bradbury Disposal District
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C. M. Atkinson |
Vice President and General Manager -
Brotherton Disposal District
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George C. Brotherton |
Vice President and General Manager -
Yeagers District
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David M. Yeager |
Vice President and General Manager -
Baith District
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Ben Baith |
Vice President and General Manager -
Cincinnati District:
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Ben Spalter |
Vice President and General Manager -
Quick Trash District:
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Wally Wogenstahl |
Secretary:
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Howard S. Hoover, Jr. |
Treasurer:
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Donald F. Cassling |
Assistant Secretary and Assistant Treasurer
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Ronald Mataaic |
Assistant Secretary and Assistant Treasurer
- - Bradbury District:
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Frank Kunzman |
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Assistant Secretary and Assistant
Treasurer Brotherton District:
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Phyllis J. Brotherton |
Assistant Secretary and Assistant
Treasurer Yeagers District:
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Sally M. Yeager |
Assistant Secretary and Assistant
Treasurer Baith District:
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Norma J. Baith |
Controller and Assistant Treasurer:
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Walter Daub |
ARTICLE VI
BY-LAWS
Until altered, amended or repealed, the By-Laws of BFI, as constituted
immediately prior to the Effective Date, shall be the By-Laws of the Surviving
Corporation.
ARTICLE VII
TERMS OF MERGER
AND DISTRIBUTION TO SHAREHOLDERS
The terms of the merger and the mode of carrying the same into effect, as well as the manner
of converting shares of Merged Corporations into Shares of Stock of the Surviving Corporation,
shall be as follows:
As of the Effective Date:
a) each issued and outstanding share of Common Stock of Bradbury shall be
converted into .1 share of Common Stock
of the Surviving Corporation.
b) each issued and outstanding share of Common Stock of Waste Systems
shall be converted into .4 share of Common Stock of the Surviving Corporation.
c) each issued and outstanding share of Common Stock of Brotherton shall
be converted into .38461 share of Common
Stock of the Surviving Corporation.
d)
each issued and outstanding share of Common Stock of C & I shall
be converted into 20 shares of Common
Stock of the Surviving Corporation.
e) Each issued and outstanding share of Common Stock of City Ash
shall be converted into .2 share of Common Stock of the Surviving
Corporation.
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f) each issued and outstanding share of Common Stock of
Granger shall be converted into 1 share of Common Stock of the
Surviving Corporation.
g)
each issued and outstanding share of Common Stock of Quick
Trash shall be converted into 1.9608 shares of Common Stock of the
Surviving Corporation.
The outstanding shares of Common Stock of BFI are not to be changed or converted as a result
of the merger, and upon the Effective Date, all shares of Common Stock of BFI heretofore
authorized, whether issued or unissued, shell be and be deemed to be shares of the Common
Stock of the Surviving Corporation, and all shares of Common Stock of
BFI outstanding on the
Effective Date shall remain outstanding, shall be and be deemed to be fully paid and
non-assessable and shall be subject to all of the provisions of this Agreement of Merger.
As soon as practicable after the Effective Date, each shareholder of Merged
Corporations whose shares of Common Stock of a Merged Corporation have been converted
into shares of Common Stock of the Surviving Corporation shall be entitled upon
surrender of an outstanding certificate or certificates representing ownership of
shares of Common Stock of a Merged Corporation to receive in exchange therefor a
certificate or certificates representing the number of shares of Common Stock of the
Surviving Corporation into which such shares of Common Stock of the Merged
Corporations theretofore represented by the surrendered certificate or certificates
shall have been converted as provided above. Until so surrendered, each such
outstanding certificate which prior to the Effective Date represented shares of
Common Stock of a Merged Corporation shall be deemed for all corporate purposes to
evidence ownership of the number of shares of common stock of the Surviving
Corporation and all voting rights with respect thereto.
ARTICLE VIII
EFFECT OF THE MERGER
On the Effective Date of the merger, the Surviving Corporation shall possess all the
assets and property of every description and every interest therein, wherever located, and
all the rights, privileges, immunities, powers, franchises and
authority, of a public as well
as of a private nature, of all of the Merged Corporations and of BFI, and all obligations
belonging to or
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due to any such Merged Corporation without further act or deed; and title to any real estate
or any interest therein vested in any Merged Corporations or BFI shall not revert or in any way be
impaired by reason of such merger; provided, however, that all of the rights of the creditors of
the Merged Corporations are preserved unimpaired, and all liens upon the property of the Merged
Corporations are preserved unimpaired on only the property affected by such liens immediately prior
to the Effective Date of the merger; and provided further, that BFI, the Surviving Corporation,
is liable for all of the obligations of the Merged Corporations, including any liability to
dissenting shareholders, and any claim existing, or action or proceeding pending, by or against
either Merged Corporations or BFI or both, may be prosecuted to judgment, with right of appeal, as
if such merger had not taken place, or the Surviving Corporation may be substituted in its place.
Each Merged Corporation and BFI agrees for itself that it will execute and deliver or cause to be
executed and delivered, all of such deeds or other instruments, and will take or cause to be taken
such further or other action as BFI, the Surviving Corporation, may deem necessary or desirable in
order to effectuate the foregoing and otherwise carry out the intent and purpose of this Agreement
of Merger.
ARTICLE IX
STATED CAPITAL
The amount of stated capital with which the Surviving Corporation will begin business is One
Thousand ($1,000.00) Dollars.
ARTICLE X
AGENT FOR SERVICE
The filing of this Agreement of Merger with the Secretary of State of the State of Ohio shall
operate as a consent by BFI, the Surviving Corporation, that it shall be subject to be sued and may
be served with process in the State of Ohio in any suit, action or proceeding for the enforcement
of any obligation or liability of any of the Merged Corporations, including any amount payable to
any dissenting shareholder pursuant to the terms of Chapter 1701, Ohio Revised Code, and as a consent
to service upon and by the Secretary of State of the State of Ohio as the agent of BFI, the
Surviving Corporation, in any such suit, action or proceeding for the enforcement of any such
obligation or liability aforesaid of each of such Merged Corporations and CT Corporation System,
Union Commerce Building, Cleveland, Cuyahoga County, Ohio 44115, is hereby irrevocably appointed
the agent of BFI, the Surviving Corporation for the service of process in action, suit or
proceeding to enforce any such obligation in liability aforesaid of any of the Merged Corporations
in this Article X, but for no other purpose.
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ARTICLE XI
QUALIFICATION OF BFI AS A FOREIGN CORPORATION IN OHIO
The Surviving Corporation desires to transact business in the State
of Ohio as a foreign corporation and hereby designates the City of Cleveland in
the County of Cuyahoga as the location of its principal office in the State of
Ohio and hereby appoints CT Corporation System, a corporation with its business
office in the County wherein such principal office is to be located, as its
designated agent upon whom service of process may be had in the State of Ohio.
The complete address of such agent in Cuyahoga County is Union Commerce
Building, Cleveland, Ohio 44115. The Surviving Corporation consents
irrevocably to the service of such process on such agent and its successors, as
long as the authority of such agent shall continue as provided by the provision
of Chapter 1703. Ohio Revised Code, the Ohio Foreign Corporation Act, and the
Surviving Corporation hereby irrevocably consents to service of process on the
Secretary of State of the State of Ohio in the event such agent cannot be found
or in any of the other events whereby such service is authorized by the Ohio
Foreign Corporation Act.
IN WITNESS WHEREOF, the parties hereto have caused these presents
to be executed by their duly authorized officers the day and year first above
written.
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BROWNING-FERRIS INDUSTRIES OF OHIO, INC. |
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By
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/s/ Harry J. Phillips |
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SEAL
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Harry J. Phillips, President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr., Secretary |
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BRADBURYS RUBBISH DISPOSAL, INC. |
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SEAL
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By
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/s/ Roger A. Ramsey |
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Roger A. Ramsey, Vice president
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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BFI WASTE SYSTEMS OF OHIO, INC. |
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By
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/s/ Roger A. Ramsey |
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SEAL
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Roger A. Ramsey, Vice President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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-12-
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BROTHERION, DISPOSAL, INC. |
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By
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/s/ Roger A. Ramsey |
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SEAL
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Roger A. Ramsey, Vice President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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C & I REFUSE, INC |
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By
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/s/ Roger A. Ramsey |
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SEAL
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Roger A. Ramsey, Vice President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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CITY ASH, INC. |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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GRANGER LEASING, INC. |
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By
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/s/ Roger A. Ramsey |
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SEAL
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Roger A. Ramsey, Vice President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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QUICK TRASH SERVICE, INC |
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By
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/s/ Roger A. Ramsey |
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SEAL
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Roger A. Ramsey, Vice President
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Attest:
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr.
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Assistant Secretary |
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-13-
AGREEMENT OF MERGER
This
Agreement of Merger, dated this 24th day of September, 1973, by and among Browning-Ferris
Industries of Ohio, Inc., (BFI), Trumbull Sanitary Land Fill, Inc. (Trumbull), Testa Bros.,
Inc. (Testa), Yeagers Development Company
(Yeagers), and Fairfield Industrial Development
Organization, Incorporation (Fairfield).
WHEREAS, BFI was incorporated by Certificate of Incorporation filed in the Office of the
Secretary of State of the State of Delaware on January 24, 1973, and presently exists and is in
good standing under the laws of the State of Delaware, has its principal place of business located
in Wilmington, New Castle County, Delaware, and has an authorized capital consisting of 2,000
shares of Common Stock, without par value, of which 100 shares were issued and outstanding on
September 1, 1973; and
WHEREAS, Trumbull was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on April 26, 1962, and presently exists and is in good
standing under the laws of the State of Ohio, has its principal place of business in Cleveland,
Cuyahoga County, Ohio, and has an authorized capital consisting of 250 shares of Common Stock,
$100.00 par value, of which 6 shares were issued and outstanding as of September 1, 1973; and
WHEREAS, Testa was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on July 2, 1947, and presently exists and is in good
standing under the laws of the State of Ohio, has its principal place of business in Cleveland,
Cuyahoga County, Ohio, and has an authorised capital consisting of 250 shares of Common Stock,
without par value, of which 48 shares were issued and outstanding as of September 1, 1973.
WHEREAS, Yeagers was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on February 11, 1971, and presently exists and is in good
standing under the laws of the State of Ohio, has its principal place of business in Cleveland,
Cuyahoga County, Ohio, and has an authorized capital consisting of 500 shares of Common Stock,
$100.00 par value, of which 3 shares were issued and outstanding as of September 1, 1973; and
WHEREAS, Fairfield was incorporated by Articles of Incorporation filed in the Office of the
Secretary of State of the State of Ohio on January 6, 1969, and presently exists and is in good
standing under the laws of the State of Ohio, has its principal place
of business in Cleveland,
Cuyahoga County, Ohio, and has an authorized capital consisting of 1,500 shares of Common Stock,
without par value, of which 100 shares were issued and outstanding as of September 1, 1973; and
WHEREAS, Section 252 of Chapter 1, General Corporation Law of the State
of Delaware authorizes the merger of a corporation organized under the laws of the State of
Ohio into a corporation which is organized under the laws of the State of Delaware and Section
1701.78 of the Ohio Revised Code authorizes the merger of a corporation organized under the laws of
the State of Ohio into a corporation organized under the laws of the State of Delaware; and
WHEREAS, the Boards of Directors of BFI, Trumbull, Testa, Yeagers and Fairfield deem it
advisable for the mutual benefit of said corporations and their respective shareholders that
Trumbull, Testa, Yeagers and Fairfield be merged into BFI upon the terms and conditions hereinafter
set forth, and such Boards of Directors have approved this Agreement of Merger.
NOW, THEREFORE, the aforesaid corporations have agreed and do hereby agree with each
other, that Trumbull, Testa, Yeagers and Fairfield shall be merged into BFI in accordance
with the provisions of the General Corporation Law of the State of Delaware and with the
provisions of Chapter 1701, Ohio Revised Code, upon the following terms and conditions and in
the following manner:
ARTICLE I
EFFECTIVE DATE
This Agreement of Merger shall be filed in the Office of the Secretary of State of
Ohio and in the Office of the Secretary of State of Delaware, and shall be effective upon
such filings with the Secretaries of State, and the date of such filings shall be herein
called the Effective Date.
ARTICLE II
MERGER
Trumbull, Testa, Yeagers and Fairfield (the Merged Corporations) shall be merged into
BFI (the Surviving Corporation) and likewise, BFI, the Surviving Corporation, shall merge
Trumbull, Testa, Yeagers and Fairfield, the Merged Corporations into itself on the Effective Date,
pursuant to the provisions of Section 252 and other applicable provisions of Chapter 1, General
Corporation Law of the State of Delaware and pursuant to Section 1701.78 and other applicable
provisions of Chapter 1701 of the Ohio Revised Code, and upon the terms and conditions herein set
forth. The separate corporate existence of Trumbull, Testa, Yeagers and Fairfield, the Merged
Corporations, shall cease at the Effective Date, and BFI, which shall survive the merger, shall
continue in existence and shall be governed by the laws of the State of Delaware. The corporate
name of BFI, as the Surviving Corporation, shall continue to be Browning-Ferris Industries of Ohio,
Inc.
-2-
ARTICLE III
ARTICLES OF INCORPORATION OF SURVIVING CORPORATION
The facts required to be set forth in Articles of Incorporation of a corporation
incorporated under the laws of the State of Delaware and that can be
stated in the case of the
merger provided for in this Agreement of Merger are as follows:
First:
The name of the Corporation is Browning-Ferris Industries of Ohio, Inc.
Second: The registered office of the Corporation in the State of Delaware is located at 100
West Tenth Street in the City of Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, 100 West Tenth Street, Wilmington, Delaware.
Third: The nature of the business, objects and purposes to be transacted, promoted or
carried on by the Corporation are:
To collect, process, haul and dispose of refuse and waste of all types, to operate
sanitary landfills and other sites, and to perform other procedures, for the
disposal of refuse and waste, and to furnish consulting services as to methods of
such collection, processing and disposal of refuse and waste and the operation of
such sites and performance of such procedures;
To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge,
sell, assign and transfer or otherwise dispose of, trade, deal in and with, as
principal, agent or otherwise, machinery, equipment and other goods, wares and
merchandise and personal property of every class and description;
To acquire and pay for in cash, stocks or bonds of the Corporation or otherwise,
the goodwill, rights, assets and property, and to undertake or assume the whole or
any part of the obligations or liabilities of any person, partnership, trust,
joint stock company, syndicate, firm, association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage
or otherwise dispose of letters patent of the United States or any foreign
country, patent rights, licenses and privileges, inventions, improvements and
processes, copyrights, trademarks and trade names, relating to or useful in
connection with any business of the Corporation;
To acquire by purchase, subscription or otherwise, and to receive, hold, own,
sell, assign, exchange, transfer, mortgage, pledge or
-3-
otherwise dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip, warrants,
rights, bonds, debentures, notes, trust receipts and other securities, obligations, choses
in action and evidences of indebtedness or interest issued or created by any corporations,
joint stock companies, syndicates, associations, firms, trusts or persons., public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other political
subdivision or by any governmental agency, and as owner thereof to possess and exercise all
the rights, powers and privileges of ownership, including the right to execute consents and
vote thereon, and to do any and all acts and things necessary or advisable for the
preservation, protection, improvement and enhancement in value thereof;
To borrow or raise moneys for any
of the purposes of the Corporation and, from time to
time without limit as to amount, to draw, make, accept, endorse, execute and issue
promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of indebtedness, and to secure
the payment of any thereof and of the Interest thereon by mortgage upon or pledge,
conveyance or assignment in trust of the whole or any part of the property of the
Corporation, whether at the time owned or thereafter acquired, and to sell, pledge or
otherwise dispose of such bonds or other obligations of the Corporation for its
corporate purposes;
To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or
otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real
or personal property, or any interest therein, wherever situated, and to sell, convey,
lease, exchange, transfer or otherwise dispose of, or mortgage or pledge, all or any of
the Corporations property and assets, or any interest therein, wherever situated; and
To engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation, but the business and purposes specified in each
of the foregoing clauses of this article shall be regarded as independent business and purposes.
Fourth: The total number of shares of all classes of stock which the Corporation shall be
authorized to issue is 2,000 shares; all of such shares shall be without par value.
-4-
Fifth: The Corporation is to have perpetual existence.
Sixth: The name and mailing address of the incorporator is:
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Mailing Address |
James E. Kline
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700 United Savings Building Toledo,
Ohio 43604 |
Seventh: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(1) To make, alter or repeal the by-laws of the Corporation.
(2) To authorize and cause to be executed mortgages and liens upon the real and personal
property of the Corporation.
(3) To set apart out of any of the funds of the Corporation available for dividends a reserve
or reserves for any proper purpose and to abolish any such reserve in the manner in which it was
created.
(4) By a majority of the whole Board of Directors, to designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to the extent provided
in the resolution or in the by-laws of the Corporation, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of any member of such
committee or committees the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of any such absent or disqualified
member.
(5) When and as authorized by the affirmative vote of the holders of a majority of the stock
issued and outstanding having voting power given at a stockholders meeting duly called upon such
notice as is required by statute, or when authorized by the written consent of the holders of a
majority of the voting stock issued and outstanding, to sell, lease or exchange all or
substantially all the property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such consideration, which may consist
in whole or in part of money or property including securities of any other corporation or
corporations, as the Board of Directors shall deem expedient and for the best interests of the
Corporation.
-5-
Eighth: Whenever a compromise or arrangement is proposed between the Corporation and
its creditors or any class of them and/or between the Corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of Delaware may, on the application
in a summary way of the Corporation or of any creditor or stockholder thereof or on the application
of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as
consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the Corporation.
Ninth: Meetings of stockholders may be held within or without the State of Delaware, as
the by-laws may provide. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the by-laws of the Corporation.
Elections of directors need not be by written ballet unless the by-laws of the Corporation shall so
provide.
Tenth: The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
ARTICLE IV
BOARD OF DIRECTORS
The following persons shall constitute the Board of Directors of the Surviving
Corporation, as of the Effective Date, each of whom shall hold office until the 1974 annual meeting
of shareholders and until their respective successors are elected and qualified:
-6-
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Loren Beck
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530 Glenwood Avenue, Youngstown, Ohio 44502 |
Tom J. Fatjo, Jr.
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1603 Fannin Bank Building, Houston, Texas
77025 |
Norman A. Myers
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1603 Fannin Bank Building, Houston, Texas
77025 |
Roger A. Ramsey
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1603 Fannin Bank Building, Houston, Texas
77025 |
Kenneth Reitzloff
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1603 Fannin Bank Building, Houston, Texas
77025 |
Harry H. Phillips
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1603 Fannin Bank Building, Houston, Texas
77025 |
L. A. Waters
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1603 Fannin Bank Building, Houston, Texas
77025 |
ARTICLE V
OFFICERS
The first officers of the Surviving Corporation, who shall hold office until their respective
successors have been elected and qualified, are as follows:
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Chairman of the Board:
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L. A. Waters |
President:
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Harry J. Phillips |
Chairman of the Executive Committee:
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Tom J. Fatjo, Jr. |
Executive Vice President:
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Kenneth Reitzloff |
Executive Vice President:
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Roger A. Ramsey |
Executive Vice President:
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Loren Beck |
Vice President and General Manager
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Ash District:
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Cecil Medrick |
Vice President and General Manager -
Bradbury
Disposal District:
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C. M. Atkinson |
Vice President and General Manager -
Brotherton Disposal District:
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George C. Brotherton |
Vice President and General Manager -
Yeagers District:
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David M. Yeager |
Vice President and General Manager -
Baith District:
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Ben Baith |
Vice President and General Manager -
Cincinnati District:
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Ralph Kerkoff |
Vice President and General Manager -
Quick Trash District:
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Wally Wogenstahl |
Vice President and General Manager -
Testa District
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Peter Brunson |
Secretary:
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Howard S. Hoover, Jr. |
Treasurer:
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Donald F. Casaling |
Assistant Secretary and Assistant
Treasurer - City Ash District:
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Ronald Matasic |
Assistant Secretary and Assistant
Treasurer - Bradbury District:
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Frank Kunzman |
Assistant Secretary and Assistant
Treasurer - Brotherton District:
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Phyllis J. Brotherton |
-7-
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NAME |
Assistant Secretary and Assistant
Treasurer - Cincinnati District
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James Garner |
Assistant Secretary md Assistant
Treasurer
- - Yeagers District:
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Sally M. Yeager |
Assistant Secretary and Assistant
Treasurer
- - Baith District:
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Norma J. Baith |
Controller
and Assistant Treasurer: |
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Walter Daub |
ARTICLE VI
BY-LAWS
Until
altered, amended or repealed, the By-Laws of BFI, as constituted immediately prior
to the Effective Date, shall be the By-Laws of the Surviving Corporation.
ARTICLE VII
TERMS OF MERGER AND DISTRIBUTION TO SHAREHOLDERS
The terms of the merger and the mode of carrying the same into effect, as well as the manner
of converting shares of the Merged Corporations into Shares of Stock of the Surviving Corporation,
shall be as follows:
As of the Effective Date:
a) each issued and outstanding share of Common Stock of Trumbull shall be
converted into 16.6666 shares of Common Stock of the Surviving Corporation.
b) each issued and outstanding share of Common Stock of Testa shall be
converted into 2.0833 shares of Common Stock of the Surviving Corporation.
c) each issued and outstanding share of Common Stock of Yeagers shall be
converted into 33.3333 shares of Common Stock of the Surviving Corporation.
d) each issued and outstanding share of Common Stock of Fairfield shall
be converted into 1 share of Common Stock of the Surviving Corporation.
The outstanding shares of Common Stock of BFI are not to be changed or converted as a result
of the merger, and upon the Effective Date, all shares of Common Stock of BFI heretofore
authorized, whether issued or unissued, shall be and be deemed to be shares of the Common
Stock of the Surviving Corporation, and all shares of Common Stock of BFI outstanding on the
Effective Date shall remain outstanding, shall be and be deemed to be fully paid and
non-assessable and shall be subject to all of the provisions of this Agreement of Merger.
-8-
As soon as practicable after the Effective Date, each shareholder of the Merged Corporations whose
shares of Common Stock of a Merged Corporation have been converted into shares of Common Stock of
the Surviving Corporation shall be entitled upon surrender of an outstanding certificate or
certificates representing ownership of shares of Common Stock of a Merged Corporation to receive in
exchange therefor a certificate or certificates representing the number of shares of Common Stock
of the Surviving Corporation into which such shares of Common Stock of the Merged Corporations
theretofore represented by the surrendered certificate or certificates shall have been converted as
provided above. Until to surrendered, each such outstanding certificate which prior to the
Effective Date represented shares of Common Stock of a Merged Corporation shall be deemed for all
corporate purposes to evidence ownership of the number of shares of common stock of the Surviving
Corporation and all voting rights with respect thereto.
ARTICLE VIII
EFFECT OF THE MERGER
On the Effective Date of the merger, the Surviving Corporation shall possess all the assets
and property of every description and every interest therein, wherever located, and all the rights,
privileges, immunities, powers, franchises and authority, of a public as well as of a private
nature, of the Merged Corporations and of BFI, and all obligations belonging to or due to any such
Merged Corporation without further act or deed; and title to any real estate or any interest
therein vested in any Merged Corporations or BFI shall not revert or in any way be impaired by
reason of such merger; provided, however, that all of the rights of the creditors of the Merged
Corporations are preserved unimpaired and all liens upon the property of the Merged Corporations
are preserved unimpaired on only the property affected by such liens immediately prior to the
Effective Date of the merger; and provided further, that BFI, the Surviving Corporation, is liable
for all of the obligations of the Merged Corporations, including any liability to dissenting
shareholders and any claim existing, or action or proceeding pending, by or against either the
Merged Corporations or BFI or both, may be prosecuted to judgment, with right of appeal, as if such
merger had not taken place, or the Surviving Corporation may be substituted in its place. Each
Merged Corporation and BFI agrees for itself, that it will execute and deliver or cause to be
executed and delivered, all of such deeds or other instruments, and will take or cause to be taken
such further or other action as BFI, the Surviving Corporation, may deem necessary or desirable in
order to effectuate the foregoing and otherwise carry out the intent and purpose of this Agreement
of Merger.
ARTICLE IX
STATED CAPITAL
The amount of stated capital with which the Surviving Corporation will begin business is One
Thousand Dollars ($1,000.00).
-9-
ARTICLE X
AGENT FOR SERVICE
The filing of this Agreement of Merger with the Secretary of State of the State of Ohio
shall operate as a consent by BFI, the Surviving Corporation, that it shall be subject to be sued
and may be served with process in the State of Ohio in any suit, action or proceeding for the
enforcement of any obligation or liability of any of the Merged Corporations, including any amount
payable to any dissenting shareholder pursuant to the terms of Chapter 1701, Ohio Revised Code, and
as a consent to service upon and by the Secretary of State of the State of Ohio as the agent of
BFI, the Surviving Corporation, in any such suit, action or proceeding for the enforcement of any
such obligation or liability aforesaid of each of such Merged Corporations and CT Corporation
System, Union Commerce Building, Cleveland, Cuyahoga County, Ohio 44115, is hereby irrevocably
appointed the agent of BFI, the Surviving Corporation for the service of process in action, suit or
proceeding to enforce any such obligation in liability aforesaid of any of the Merged Corporations
in this Article X, but for no other purpose.
ARTICLE XI
QUALIFICATION OF BFI AS A FOREIGN CORPORATION IN OHIO
The Surviving Corporation is qualified to do business in the State of Ohio as a foreign
corporation and desires to continue to transact business in the State of Ohio as a
foreign corporation and hereby designates the City of Cleveland in the County of
Cuyahoga as the location of its principal office in the State of Ohio and hereby
appoints CT Corporation System, a corporation with its business office in the County
wherein such principal office is to be located, as its designated agent upon whom
service of process may be had in the State of Ohio. The complete address of such agent
in Cuyahoga County is Union Commerce Building, Cleveland, Ohio 44115. The Surviving
Corporation consents irrevocably to the service of such process on such agent and its
successors as long as the authority of such agent shall continue as provided by the
provision of Chapter 1703, Ohio Revised Code, the Ohio Foreign Corporation Act, and the
Surviving Corporation hereby irrevocably consents to service of process on the
Secretary of State of the State of Ohio in the event such agent cannot be found or in
any of the other events whereby such service is authorized by the Ohio Foreign
Corporation Act.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their
duly authorized officers the day and year first above written.
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BROWNING - FERRIS INDUSTRIES OF OHIO, INC. |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, Vice-President / Executive |
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Attest:
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/s/ Frank Kunzman |
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Frank Kunzman, Assistant Secretary |
-10-
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TRUMBULL SANITARY LAND FILL, INC. |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, President |
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Attest:
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/s/ Walter Daub |
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Walter Daub, Secretary |
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TESTA BROS., INC. |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, Vice President |
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Attest:
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/s/ Walter Daub |
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Walter Daub, Assistant Secretary |
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YEAGERS DEVELOPMENT COMPANY |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, Vice President |
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Attest:
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/s/ Walter Daub |
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Walter Daub, Assistant Secretary |
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FAIRFIELD INDUSTRIAL DEVELOPMENT ORGANIZATION, INCORPORATION |
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SEAL
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By
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/s/ Loren Beck |
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Loren Beck, Vice President |
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Attest:
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/s/ Walter Daub |
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Walter Daub, Assistant Secretary |
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STATE OF OHIO). |
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SS: |
COUNTY OF MAHONING) |
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Be
it remembered that on this 24th day of September, 1973, personally came before
me, a notary public in and for the county and state aforesaid, Loren Beck, Executive Vice
President of Browning-Ferris Industries of Ohio, Inc., a corporation in the State of Delaware,
and one of the corporations described in and which executed the foregoing Agreement of Merger,
known to me personally to be such, and he, the said Loren Beck, as such Executive Vice
President, duly executed said Agreement of Merger before me and
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acknowledged said Agreement of Merger to be duly authorized by the Board of
Directors to be the act, deed and acknowledgment of Browning-Ferris
Industries of Ohio,
Inc., that the signatures of the said Executive Vice President and Assistant Secretary of
said Corporation to the foregoing Agreement of Merger are in the handwriting of the
Executive Vice President and Assistant Secretary of the said Browning-Ferris Industries of
Ohio, Inc. and that the seal affixed to said Agreement
of Merger is the corporate seal of said Corporation, and that the facts stated in said
Agreement of Merger are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Low |
STATE OF OHIO
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
COUNTY OF MAHONING
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Sec. 147.03 R.C. |
Be
it remembered on this 24th day of September, 1973, personally came before me,
a notary public in and for the county and state aforesaid, Loren Beck, President of Trumbull
Sanitary Land Fill, Inc., an Ohio corporation, and one of the corporations described in and
which executed the foregoing Agreement of Merger, known to me personally to be such, and he,
the said Loren Beck, as such President, duly executed said Agreement of Merger before me and
acknowledged said Agreement of Merger to be duly authorized by the Board of Directors to be
the act, deed and acknowledgement of Trumbull Sanitary Land Fill, Inc., that the signatures
of the said President and Secretary of said Corporation to the foregoing Agreement of Merger
are in the handwriting of the President and Secretary of the said Trumbull Sanitary Land
Fill. Inc. and that the seal affixed to said Agreement of Merger is the corporate seal of
said Corporation, and that the facts stated in said Agreement of Merger are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year
aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Low |
STATE OF OHIO
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
COUNTY OF MAHONING
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Sec. 147.03 R.C. |
Be
it remembered on this 24th day of September, 1973, personally came
before me, a notary public in and for the county and state aforesaid. Loren Beck, Vice
President of Testa Bros., Inc., an Ohio corporation, and one of the
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corporations described in and which executed the foregoing Agreement of Merger,
known to me personally to be such, and he, the said Loren Beck, as such Vice President,
duly executed said Agreement of Merger before me and acknowledged said Agreement of
Merger to be duly authorized by the Board of Directors to be the act, deed and
acknowledgment of Testa Bros., Inc., that the signatures of the said Vice President and
Assistant Secretary of said Corporation to the foregoing Agreement of Merger are in the
handwriting of the Vice President and Assistant Secretary of the said Testa Bros., Inc.
and that the seal affixed to said Agreement of Merger is the corporate seal of said
Corporation, and that the facts stated in said Agreement of Merger are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office
the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
STATE OF OHIO)
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Notary Public State of Ohio |
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SS: |
My Commission has no Expiration Date |
COUNTY OF MAHONING)
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Sec. 147.03 R.C. |
Be
it remembered on this 24th day of September, 1973, personally came before
me, a notary public in and for the county and state aforesaid, Loren Beck, Vice
President of Yeagers Development Company, an Ohio corporation, and one of the
corporations described in and which executed the foregoing Agreement of Merger, known to
me personally to be such, and he, the said Loren Beck, as Vice President, duly executed
said Agreement of Merger before me and acknowledged said Agreement of Merger to be duly
authorized by the Board of Directors to be the act, deed and acknowledgment of Yeagers
Development Company, that the signatures of the said Vice President and Assistant
Secretary of said Corporation to the foregoing Agreement of Merger are in the
handwriting of the Vice President and Assistant Secretary of the said Yeagers
Development Company and that the seal affixed to said Agreement of Merger is the
corporate seal of said Corporation, and that the facts stated in said Agreement of
Merger are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year
aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
STATE OF OHIO)
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Notary Public State of Ohio |
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SS: |
My Commission has no Expiration Date |
COUNTY OF MAHONING
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Sec. 147.03 R.C. |
Be it remembered on this 24th day of September, 1973, personally came
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before me, a notary public in and for the county and state aforesaid, Loren Beck, Vice
President of Fair field Industrial Development Organization, Incorporation, an Ohio corporation,
and one of the corporations described in and which executed the foregoing Agreement of Merger,
known to me personally to be such, and he, the said Loren Beck, as such Vice President, duly
executed said Agreement of Merger before me and acknowledged said Agreement of Merger to be duly
authorized by the Board of Directors to be the act, deed and acknowledgment of Fairfield Industrial
Development Organization, Incorporation, that the signatures of the said Vice President and
Assistant Secretary of said Corporation to the foregoing Agreement of Merger are in the handwriting
of the Vice President and Assistant Secretary of the said Fairfield Industrial Development
Organization. Incorporation, and that the seal affixed to said Agreement of Merger is the corporate
seal of said Corporation, and that the facts stated in said Agreement of Merger are true.
IN
WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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SEAL
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Notary Public |
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THOMAS D. TRIMBLE,
Attorney of Law |
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
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Sec. 147.03 R.C. |
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I. Frank Kunzman, Assistant Secretary of Browning Ferris Industries of Ohio, Inc., a Delaware
corporation, do hereby certify, as such Assistant Secretary and under the seal of said Corporation, that the
Agreement of Merger to which the Certificate is attached was duly adopted and approved by the
shareholders of Browning-Ferris Industries, Inc. by Action by Written Consent dated September 27,
1973 and that 100 shares of stock of said Corporation were on said date issued and outstanding;
that the holders of all of the shares voted in favor of approval of the Agreement of Merger, and
that the Agreement of Merger by said Action by Written Consent was duly and unanimously adopted as
the act of the shareholders of said Browning-Ferris Industries of
Ohio, Inc., a Delaware
corporation, and the duly adopted Agreement of said Corporation.
Witness my hand and seal of said Browning-Ferris Industries of Ohio, Inc., on this 28th day of
September, 1973.
I, Walter Daub, Secretary of Trumbull Sanitary Land Fill, Inc., an Ohio corporation, do hereby
certify, as such Secretary and under the seal of said Corporation, that the Agreement of Merger to
which the Certificate is attached was duly adopted and approved by the shareholders of Trumbull
Sanitary Land Fill, Inc. by Action by Written Consent dated September 28, 1973 and that 6 shares of
stock of said Corporation were on said date issued and outstanding; that the holders of all of the
shares voted in favor of approval of the Agreement of
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Merger, and that the Agreement of Merger by said Action by Written Consent was duly and unanimously
adopted as the act of the shareholders of said Trumbull Sanitary Land
Fill, Inc., an Ohio
corporation, and the duly adopted Agreement of said Corporation.
Witness my hand and seal of said Trumbull Sanitary Land Fill, Inc., on this 28th day of
September, 1973.
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SEAL
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/s/ Walter Daub |
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Walter Daub, Secretary |
I,
Walter Daub, Assistant Secretary of Testa Bros., Inc., an Ohio corporation, do hereby certify,
as such Assistant Secretary and under the seal of said Corporation, that the Agreement of Merger to
which the Certificate is attached was duly adopted and approved by the shareholders of Testa Bros.,
Inc. by Action by Written Consent dated September 28, 1973 and that 48 shares of stock of said
Corporation were on said date issued and outstanding; that the holders of all of the shares voted
in favor of approval of the Agreement of Merger, and that the Agreement of Merger by said Action by
Written Consent was duly and unanimously adopted as the act of the shareholders of said Testa
Bros., Inc., an Ohio corporation, and the duly adopted Agreement of said Corporation.
Witness
my hand and seal of said Testa Bros., Inc. on this 28th day of September, 1973.
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SEAL
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/s/ Walter Daub |
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Walter Daub, Assistant Secretary |
I,
Walter Daub, Assistant Secretary of Yeagers Development
Company, an Ohio corporation, do hereby
certify, as such Assistant Secretary and under the seal of said Corporation, that the Agreement of
Merger to which the Certificate is attached was duly adopted and approved by the shareholders of
Yeagers Development Company, by Action by Written Consent dated September 28, 1973 and that 3
shares of stock of said Corporation were on said date issued and outstanding; that the holders of
all of the shares voted in favor of approval of the Agreement of Merger, and that the Agreement of
Merger by said Action by Written Consent was duly and unanimously adopted as the act of the
shareholders of said Yeagers Development Company, an Ohio corporation, and the duly adopted
Agreement of said Corporation.
Witness
my hand and seal of said Yeagers Development Company on this 28th day of September 1973.
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SEAL
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/s/ Walter Daub |
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Walter Daub, Assistant Secretary |
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I, Walter Daub. Assistant Secretary of Fairfield Industrial Development Organization.
Incorporation, an Ohio corporation, do hereby certify, as such Assistant Secretary and under the
seal of said Corporation, that the Agreement of Merger to which the Certificate is attached was
duly adopted and approved by the shareholders of Fairfield Industrial Development Organization,
Incorporation, by Action by Written Consent dated September 28, 1973 and that 100 shares of stock
of said Corporation were on said date issued and outstanding; that the holders of all of the shares
voted in favor of approval of the Agreement of Merger, and that the Agreement of Merger by said
Action by Written Consent was duly and unanimously adopted as the act of the shareholders of said
Fairfield Industrial Development Organization, Incorporation, an Ohio corporation, and the duty
adopted Agreement of said Corporation.
Witness my hand and seal of said Fair field Industrial Development Organization Incorporation this
28th day of September, 1973.
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SEAL
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/s/ Water Daub |
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Walter Daub, Assistant Secretary |
The above Agreement of Merger, having been duly executed by the President or Vice President and the
Secretary or Assistant Secretary of each corporation party thereto, and having been adopted
separately by the shareholders of each said corporation party thereto, in accordance with the
provisions of the General Corporation Laws of the State of Delaware and of the State of Ohio and
the fact having been certified on the Agreement of Merger by the Secretary or Assistant Secretary
of each corporation party thereto, the President or Vice President, and the Secretary or Assistant
Secretary of each said corporation party thereto do hereby reexecute said Agreement of Merger by
authority of the directors and shareholders of each such corporation party thereto, and affix the
corporate seal of each Such corporation as the respective act. deed and agreement of each such
corporation this 28th day of September, 1973.
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BROWNING-FERRIS INDUSTRIES OF OHIO, INC. |
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SEAL
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By
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/s/ Loren Beck |
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By
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/s/ [ILLEGIBLE] |
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TRUMBULL SANTARY LAND HILL, INC. |
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SEAL
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By
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/s/ Loren Beck |
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By
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/s/ Walter Daub |
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TESTA BROS. INC. |
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SEAL
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By
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/s/ Loren Beck |
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By
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/s/ Walter Daub |
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YEAGERS DEVELOPMENT COMPANY |
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SEAL
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By
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/s/ Loren Beck |
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By
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/s/ Walter Daub |
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FAIRFIELD INDUSTRIAL DEVELOPMENT
ORGANIZATION, INCORPORATION |
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SEAL
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By
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/s/ Loren Beck |
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By
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/s/ Walter Daub |
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STATE OF OHIO |
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COUNTY OF MAHONING |
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Personally appeared before me, a notary public in and for said county and state this 28th day of
September, 1973, the above named Loren Beck, Executive Vice President
of Browning-Ferris/Industries of Ohio,
Inc., a Delaware corporation, and one of the corporations described in and which executed the
foregoing Agreement of Merger, known to me personally to be such, and
he, the said Executive Vice
President, as such Executive Vice President, duly executed said Agreement of Merger before me and
acknowledged said Agreement of Merger to be the act and deed of said Browning-Ferris Industries of
Ohio, Inc., and to be his free act and deed and that the signature of Loren Beck and Frank
Kunzman, are the signatures of the Executive Vice President and Assistant Secretary respectively of
Browning-Ferris Industries of Ohio, Inc. and that the seal affixed to said Agreement of Merger is
the common corporate seal of said corporation, and that the facts stated in said Agreement of
Merger are true.
IN
WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
STATE OF OHIO)
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Notary Public State of Ohio |
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ss: |
My Commission has no Expiration Date |
COUNTY OF MAHONING )
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Sec. 147.03 R.C. |
Personally
appeared before me, a notary public in and for said county and state
this 28th day of
September, 1973, the above named Loren Beck, President of Trumbull
Sanitary Land Fill, Inc., an
Ohio corporation, and one of the corporations described in and which executed the foregoing
Agreement of Merger, known to me personally to be such, and he, the said President, as such
President, duly executed said Agreement of Merger before me and acknowledged said Agreement of
Merger to be the act and deed of said Trumbull Sanitary Land Fill, Inc., and to be his free act
and deed and that the signatures of Loren Beck and Walter Daub, are the signatures of the President
and Secretary, respectively, of Trumbull Sanitary Land Fill, Inc. and that the seal affixed to said
Agreement of Merger is the common corporate seal of said Corporation, and that the facts stated in
said Agreement of Merger are true.
IN WITNESS WHEREOF , I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
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Sec. 147.03 R.C. |
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STATE OF OHIO) |
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COUNTY OF MAHONING ) |
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Personally appeared before me, a notary public in and for said county and state this 28th day of
September, 1973, the above named Loren Beck, Vice President of Teata Bros., Inc., an Ohio
corporation, and one of the corporations described in and which executed the foregoing Agreement of
Merger, known to me personally to be such, and he, the said Vice President, as such Vice President,
duly executed said Agreement of Merger before me and acknowledged said Agreement of Merger to be
the act and deed of said Testa Bros., Inc., and to be his free act and deed and that the signatures
of Loren Beck and Walter Daub, are the signatures of the Vice President and Assistant Secretary,
respectively, of Testa Bros., Inc. and that the seal affixed to said Agreement of Merger is the
common corporate seal of said corporation, and that the facts stated in said Agreement of Merger
are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
STATE OF OHIO)
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Notary Public State of Ohio |
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SS: |
My Commission has no Expiration Date |
COUNTY OF MAHONING ) |
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Sec. 147.03 R.C. |
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SEAL |
Personally appeared before me, a notary public in and for said county and state this 28th day of
September, 1973, the above named Loren Beck, Vice President of Yeagers Development Company, an
Ohio corporation, and one of the corporations described in and which executed the foregoing
Agreement of Merger, known to me personally to be such, and he, the said Vice President, as such
Vice President, duly executed said Agreement of Merger before me and acknowledged said Agreement of
Merger to be the act and deed of said Yeagers Development Company, and to be his free act and deed
and that the signatures of Loren Beck and Walter Daub, are the signatures of the Vice President and
Assistant Secretary, respectively, of Yeagers Development Company and that the seal affixed to
said Agreement of Merger is the common
corporate seal of said corporation, and that the facts stated in said Agreement of Merger are true
IN
WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
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Sec. 147.03 R.C. |
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SEAL |
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STATE OF OHIO
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SS: |
COUNTY OF MAHONING
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Personally
appeared before me, a notary public in and for said county and state this 28th day of
September, 1973, the above named Loren Beck, Vice President of Fairfield Industrial Development
Organisation, Incorporation, an Ohio corporation, and one of the corporations described in and
which executed the foregoing Agreement of Merger, known to me personally to be such, and he, the
said Vice President, as such Vice President, duly executed said Agreement of Merger before me and
acknowledged said Agreement of Merger to be the act and deed of said Fairfield Industrial
Development Organization, Incorporation, and to be his free act and deed and that the signatures of
Loren Beck and Walter Daub, are the signatures of the Vice President and Assistant Secretary,
respectively, of Fairfield Industrial Development Organisation, Incorporation and that the seal
affixed to said Agreement of Merger is the common corporate seal of said corporation, and that the
facts stated in said Agreement of Merger are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the day and year aforesaid.
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/s/ Thomas D. Trimble |
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Notary Public |
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THOMAS D. TRIMBLE, Attorney of Law |
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Notary Public State of Ohio |
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My Commission has no Expiration Date |
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Sec. 147.03 R.C. |
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SEAL |
exv3w334
Exhibit 3.334
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF OHIO, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call
for a Special Meeting, often percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w335
FILED
SECRETARY OF STATE
1984 JUL 19 AM 10:16
RESTATED CHARTER
OF
BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC.
UNDER SECTION 48-304 OF THE GENERAL CORPORATION ACT
Pursuant to the provisions of Section 48-304 of the Tennessee General Corporation Act, the
undersigned corporation for profit adopts the following restated charter:
Part I:
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1. |
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The name of the corporation is Browning-Ferris Industries of Tennessee, Inc. |
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2. |
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The duration of the corporation is perpetual. |
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3. |
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The address of the principal office of the corporation shall be c/o CT
Corporation System, 530 Gay Street, Knoxville, Tennessee 37902, County of
Knoxville, State of Tennessee. |
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4. |
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The corporation is for profit. |
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5. |
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The purpose or purposes for which the corporation is organized are: |
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To collect, transport, dispose of, and otherwise deal with solid and other waste
materials of all kinds and descriptions; |
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To purchase, manufacture, assemble, fabricate, produce, import, receive, lease as
lessee or otherwise acquire, own, hold, store, use, repair, service, maintain,
mortgage, pledge or otherwise encumber, sign, assign, lease as lessor, distribute,
export or otherwise dispose of and generally deal with and in as principal,
agent, broker, investor or otherwise, equipment, goods, wares, merchandise,
securities and personal property, tangible or intangible, of all kinds and
descriptions: |
FILED
SECRETARY OF STATE
1984 JUL 19 AM 10:16
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To establish, maintain and conduct any sales, service, agency, brokerage,
franchise, investment or merchandising business in all its aspects for
the purpose of selling, purchasing, licensing, renting, leasing,
operating, franchising and otherwise dealing with personal services,
instruments, machines, appliances, inventions, securities, trade marks,
trade names, patents, privileges, processes, improvements, copyrights,
contract rights and personal property, tangible and intangible, of all
kinds and descriptions; |
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To serve as manager, consultants, representative, agent, broker or advisor
for other persons, associations, corporations, partnerships and firms; |
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To enter into partnerships or into any arrangement for sharing of
profits, union of interests, cooperation, joint venture, reciprocal
concession or otherwise, with any person, firm or corporation carrying
on or engaged in or about to carry on or engage in any business or
transaction which the corporation is authorized to carry on or engage in; |
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To carry out the purposes above set forth in any state, territory,
district or possession of the United States, or in any foreign country to
the extent that such purposes are not forbidden by the law of such state,
territory, district or possession of the United States or by such foreign
country; and |
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In general, to carry on any other business and do any other acts in
connection with the foregoing and to have and exercise all powers
conferred by the laws of the State of Tennessee upon corporations formed
under the Tennessee General Corporation Act, and to do any or all of the
things hereinabove set forth to the same extent as natural persons might
or could do. |
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6. |
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The maximum number of shares which the corporation shall
have authority to issue is one thousand (1,000) shares with One Dollar
($1.00) par value. |
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7. |
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The corporation will not commence business until
consideration of One Thousand and No/100 Dollars ($1,000.00) has been
received for the issuance of shares (not less than $1,000). |
FILED
SECRETARY OF STATE
1984 JUL 19 AM 10:16
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Other provisions (insert here any other provision included in the original charter or an
amendment, such as: regulation of internal affairs of the corporation, provisions creating,
dividing, limiting and regulating the powers of directors, officers or shareholders, or any class
of any shareholders, etc. See Sec. 48-202(g): |
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No shareholder shall be entitled as a matter of right to subscribe for or
receive additional shares of any class of stock of the corporation, whether
now or hereafter authorized, or any bonds, debentures or other securities
convertible into stock, but such additional shares of stock or other
securities convertible into stock may be issued or disposed of by the Board
of Directors to such persons and on such terms as in its discretion it shall
deem advisable. |
Part II:
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1. |
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The restated charter restates the text of the charter,
as previously amended, further amends or changes the charter as specified
below, and was duly adopted by joint unanimous written consent of the Board of
Directors
of the Sole Shareholder on July 5, 1984: |
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3. |
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The address of the principal office of the corporation
shall be c/o CT Corporation System, 530 Gay Street, Knoxville, Tennessee
37902. |
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2. |
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The date the original charter was filed by the Secretary of
State was November 19, 1970. |
Dated: July 11, 1984.
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BROWNING-FERRIS INDUSTRIES OF |
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TENNESSEE, INC. |
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By:
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/s/ Stephen L. Thomas |
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Stephen L. Thomas
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Vice President |
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-3-
exv3w336
Exhibit 3.336
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article in shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
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Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
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Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w337
Exhibit 3.337
The Commonwealth Massachusetts
DEPARTMENT OF CORPORATIONS AND TAXATION
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We, |
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THOMAS J. DOOLEY
ALBERT P. DOOLEY
JOHN J. DOOLEY
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being a majority of the directors of the DOOLEY BROS. INC.
elected at its, first meeting in compliance with the requirements of section 10 of chapter 156 of
the General Laws, do hereby certify that the following is a true copy of the agreement of
association to form said corporation, with the names of the subscribers thereto:-
We,
whose names are hereto subscribed, do, by this agreement, associate ourselves
with the intention of forming a corporation under the provisions of chapter 156 of the General
Laws as amended.
The name by which the corporation shall be known is
DOOLEY BROS. INC.
The location of the principal office of the corporation in Massachusetts is the
state of Massachusetts and outside Massachusetts the of State of
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IMPORTANT: |
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State complete business address of corporation if known, otherwise, address to which mail should be sent. |
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Howard Street, Roxbury, Massachusetts.
The purposes for which the corporation is formed and the nature of the business to be
transacted by it are as follows:-
General trucking and transporting of goods and merchandise including
gravel, cinders, rubbish, furniture, coke, coal, crushed stone, building materials and
supplies and household goods; Buying and selling gravel, cinders and all building
supplies construction of cellars for buildings, hiring out trucks for transportation
and trucking purposes; general contracting.
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The total authorized capital stock with par value is
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dollars, Preferred |
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25,000 |
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dollars, Common |
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The number of shares without par value is |
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Preferred
Common |
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Preferred
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dollars |
The par value of its shares is |
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Common
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100.00 |
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dollars |
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Preferred |
The number of its shares with par value is |
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Common 250 |
(NOTEState the restrictions, if any, imposed upon the transfer of shares; and, if
there are to be two or more classes of stock, a description of the different classes and a
statement of the terms on which they are to be created and the method of voting thereon.)
No stock shall be offered for sale by its holder without first
offering said stock for sale to the directors of the corporation.
A
stockholder wishing to sell or transfer any of his stock, shall first, in writing, offer to
sell the same to the Company, through the board of directors, disclosing the consideration for the
proposed sale or transfer, and the name and address to the person to whom it is to be made. The
board of directors shall have 20 days from the date of such offer to purchase the stock in behalf
of the Company for a consideration to be determined by three arbitrators, of which one shall be
appointed by each party and the third by the two so appointed; or the board may, after such
determination, elect to buy the said stock at the price of the proposed sale or transfer. This
provision may be waived by the board of directors in any particular instance.
(NOTEState any other provisions not inconsistent with law for the conduct and
regulation of the business of the corporation, for its voluntary dissolution, or for limiting,
defining or regulating the powers of the corporation, or of its directors or stockholders, or
any class of stockholders.)
First
Names Should be Written in Full
Initials and abbreviations are not sufficient
(If seven days notice is given, use the following form.)
The first meeting shall be called by board of directors
of DOOLEY
BROS. INC.
(If notice is waived, use the following form.)
We hereby waive all requirements of the general laws of Massachusetts for notice of the
first meeting for organization, and appoint the
5th day of December, 1928, at 4
P.M. oclock M., at Rm. 331 Kimball Building, Boston, as the time and place for holding said first
meeting.
The names and residences of the incorporators and the amount of stock subscribed for by each are as follows:-
Amount subscribed for
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City or Town |
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Common |
THOMAS J. DOOLEY
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31 Laurel Street,
Roxbury, Boston
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20 |
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ALBERT P. DOOLEY
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31 Laurel Street,
Roxbury Boston
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20 |
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JOHN J. DOOLEY
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31 Laurel Street, Roxbury, Boston
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In
Witness Whereof, we have hereto set our hands, this 5th
day of December in the year nineteen hundred and twenty- eight.
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That the first meeting of the subscribers to said agreement was held, on
the 5th
day of December in the year nineteen hundred and twenty-
That the amount of capital stock now to be issued is
shares of preferred stock,
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shares of common stock,
to be paid for as follows:-
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SHARES PREFERRED |
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SHARES COMMON |
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In full |
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By instalments |
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Amount of instalments to be
paid before commencing
business |
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In
Property: |
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Personal Property: |
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Machinery and equipment |
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Merchandise |
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Bills receivable |
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Stocks and securities |
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Patent rights |
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Trade marks |
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Copyrights |
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Good will |
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* Services |
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* Expenses |
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State clearly the nature of such services or expenses and the amount of stock to be
issued therefor |
The name, residence and post-office address of each of the officers are as follows:-
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Residence |
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Name
of Office |
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Post-Office Address |
President,
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THOMAS J. DOOLEY
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31 Laurel Street,
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Roxbury, Boston |
Treasurer,
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ALBERT .P. DOOLEY
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31 Laurel Street,
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Roxbury,Boston |
Clerk,
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JOHN J. DOOLEY
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31 Laurel Street,
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Roxbury,Boston |
Directors,
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THOMAS J. DOOLEY, ALBERT P. DOOLEY and JOHN J. DOOLEY
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In witness whereof and under the penalties of perjury, we have hereto signed
our names, this 5th day of December in the year 1928.
The Commonwealth Massachusetts
JOHN F. X. DAVOREN
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
This certificate must be submitted to the Secretary of the Commonwealth within sixty days
after the date of the vote of stockholders adopting the amendment. The fee for filing this
certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the
Commonwealth of Massachusetts.
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We, Richard J. Dooley,
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President and |
Richard J. Dooley,
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Clerk of |
DOOLEY
BROS., INC.
(Name of Corporation)
located at 164 Market Street, Boston, Massachusetts
do hereby certify that the following amendment to the articles of organization of the corporation
was duly
adopted by consent dated May 10, 1972, by vote of
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60
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shares of
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COMMON
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out of
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60 |
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shares outstanding, |
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(Class of Stock) |
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shares of
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out of
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shares outstanding, and |
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(Class of Stock) |
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shares of
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(Class of Stock) |
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being at least a majority of each class outstanding and entitled to vote
thereon:-1
cross our
INAPPLICABLE
CLAUSE
that the name of the corporation be changed to BFI Waste Systems of Massachusetts, Inc.
1 |
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for amendments adopted pursuant to Chapter 156B, Section 70. |
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far amendments adopted pursuant to Chapter 156B, Section 71 |
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NOTE- |
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Amendments for which the space provided above- is not sufficient should be set
out on continuation sheets to be number 2A, 2B, etc. Continuation
sheets shall be on 8 1/2 wide x 11 high paper and must
have a left-hand margin 1 inch wide for binding. Only one side should be
used. |
The foregoing amendment will become effective when these articles of amendment are filed
in accordance with Chapter 156B, Section 6 of the General Laws unless these articles specify, in
accordance with the vote adopting the amendment, a later effective date not more than thirty days
after such filing, in which event the amendment will become effective on such later date.
IN WITNESS
WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 10th day of May, in the year 1972.
/s/
Richard J. Dooley President
/s/
Richard J. Dooley Clerk
The Commonwealth Massachusetts
JOHN F. X. DAVOREN
Secretary of the Commonwealth
STATE HOUSE, BOSTON, MASS.
RESTATED ARTICLES OF ORGANIZATION
General
Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth within sixty
days after the date of the vote of stockholders adopting the restated
articles of organization. The fee for filing this certificate is
prescribed by General Laws. Chapter 156B, Section 114. Make check payable in the Commonwealth of
Massachusetts
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We, Thomas J. Dooley, Jr.
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Vice President, and |
Michael J. Verrochi, Jr.
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Assistant Clerk of |
BFI
Waste Systems of Massachusetts, Inc.
(Name of Corporation)
located at 164 Market Street, Brighton (Boston), Massachusetts
do hereby certify that the following restatement of the articles of organization of the
corporation was duly
adopted by a consent vote dated August 10, 1972, by vote of
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60
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60 |
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shares of
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being at least two-thirds of each class of stock outstanding and entitled to vote
and of each class or series of stock adversely affected thereby:-
1. The
name by which the corporation shall be known is:- Browning-Ferris Industries,
Inc.
2. The purposes for which the corporation is formed are as follows:-
To collect, process, haul and dispose of refuse and waste of all types, to operate
sanitary landfills and other sites, and to perform other procedures, for the disposal of
refuse and waste, and to furnish consulting services as to methods of such collection,
processing and disposal of refuse and waste and the operation of such sites and performance of
such procedures; to build, erect, construct and remodel all types of buildings, bridges, roads
and other types of general contracting works; and to carry on any other business permitted by
the laws of the Commonwealth of Massachusetts to a corporation organized under Chapter 156B.
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NOTE |
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Provisions for which the space provided under articles 2, 4, 5 and 6 is not
sufficient should be set out on continuation sheets to be
numbered 2A, 2B, etc. indicate under each article where the provision
is set out.
Continuation sheets shall be on 81/2 wide x 11 high
paper and must have a left hand margin 1 inch wide for binding. Only one side should be
used. |
3. |
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The total number of shares and the par value, if any, of each class of stock which the
corporation is authorized to issue is as follows: |
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WITHOUT PAR VALUE |
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WITH PAR VALUE |
CLASS OF STOCK |
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NUMBER OF SHARES |
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NUMBER OF SHARES |
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PAR VALUE |
Preferred |
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NONE |
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NONE |
Common |
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NONE |
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250 |
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$ |
100 |
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If more than one class is authorized, a description of each of the different classes of stock
with, if any, the preferences, voting powers, qualifications, special or relative rights or
privileges as to each class thereof and any series now established. |
NONE
*5. |
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The restrictions, if any, imposed by the articles of organization upon the transfer of shares
of stock of any class are as follows: |
NONE
*6. |
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Other lawful provision, if any, for the conduct and regulation of the business and affairs of
the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the
corporation, or of its directors or stockholders, or of any class of stockholders: |
Meetings of Stockholders and/or Directors may be held any-where throughout the United States.
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If there are no such provisions, state None. |
*We
further certify that the foregoing related articles of organization affect no
amendments to the articles of organizations of the corporation as heretofore amended,
[ILLEGIBLE] amendment to the following articles.
(* if there are no such amendments state None)
1. The name of the corporation has been changed.
2. The purpose clause has been changed.
3. Prior restrictions upon the transfer of shares of common stock have been deleted.
IN WITNESS
WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 11th day of
August in the year 1972.
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Vice President |
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Assistant Clerk |
exv3w338
Exhibit 3.338
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS INDUSTRIES, INC.
(Massachusetts)
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding
shares of common stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required
2
by law) prior to the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any stockholder of the
Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE
III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
4
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7.
Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at
its first
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meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition
8
of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize
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the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by
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reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this
Article VIII shall mean any other corporation
or any partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or
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agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivitv of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9.
Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w339
Exhibit 3.339
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 12:25 PM 10/06/1991 |
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912815113 764126 |
RESTATED CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES, INC.
The undersigned certify:
1. |
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The name of the corporation (hereinafter the Corporation)
is Browning-Ferris
Industries, Inc. The Corporation was originally incorporated under the name BFI, Inc. The
original Certificate of Incorporation was filed with the Secretary of State of Delaware
on October 26, 1970. Restated Certificates of Incorporation were filed with the Secretary
of State of Delaware on February 15, 1972, April 25, 1979,
October 19, 1982, September 6,
1984, March 7, 1985, April 2, 1987 and March 25, 1988. |
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2. |
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This Restated Certificate of Incorporation restates and integrates only (including the
provisions as provided under the Certificate of Designation, Preferences and Rights of
Series A Participating Preferred Stock of the Corporation as filed with the Secretary of
State of Delaware on June 1, 1988) and does not further amend the provisions of the
Corporations Restated Certificate of Incorporation as heretofore amended or supplemented
or previously restated. There is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation. |
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3. |
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The Board of Directors of the Corporation has duly adopted this Restated Certificate of
Incorporation in accordance with 8 Del. C. Section 245. |
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4. |
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The Restated certificate of Incorporation reads as follows: |
RESTATED
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS INDUSTRIES, INC.
First: The name of the Corporation is Browning-Ferris Industries, Inc.
Second:
The registered office of the Corporation in the State of Delaware is located at 1209
Orange Street in the City of Wilmington, County of New Castle. The name and address of its
registered agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801.
Third:
The nature of the business, objects and purposes to be transacted, promoted or carried on
by the Corporation are:
To collect, process, haul and dispose of refuse and waste of all types, to operate sanitary
landfills and other sites, and to perform other procedures, for the disposal of refuse and waste,
and to furnish consulting services as to methods of such collection, processing and disposal of
refuse and waste and the operation of such sites and performance of such procedures;
To manufacture, purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and
transfer or otherwise dispose of, trade, deal in and with, as principal, agent or otherwise,
machinery, equipment and other goods, wares and merchandise and personal property of every class
and description;
To acquire, and pay for in cash, stocks or bonds of the Corporation or otherwise, the goodwill,
rights, assets and property, and to undertake or assume the whole or any part of the obligations
or liabilities of any person, partnership, trust, joint stock company, syndicate, firm,
association or corporation;
To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise
dispose of letters patent of the United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights, trademarks and trade names,
relating, to or useful in connection with any business of the Corporation;
To acquire by purchase, subscription or otherwise, and to receive, hold, own, sell, assign,
exchange, transfer, mortgage, pledge or otherwise dispose of or deal in and with any of the shares
of the capital stock, or any voting trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust receipts and other securities,
obligations, choses in action and evidences of indebtedness or interest issued or created by any
corporations, joint stock companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign government, or
by any state, territory,
province, municipality or other political subdivision or by any governmental agency, and as owner
thereof to possess and exercise all the rights, powers and privileges of ownership, including the
right to execute consents and vote thereon, and to do any and all acts and things necessary or
advisable for the preservation, protection, improvement and enhancement in value thereof;
To borrow or raise monies for any of the purposes of the Corporation and, from time to time
without limit as to amount, to draw, make, accept, endorse, execute
and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or
non-negotiable instruments and evidences of indebtedness, and to secure the payment of any thereof
and of the interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the
whole or any part of the property of the corporation, whether at the time owned or thereafter
acquired, and to sell, pledge or otherwise dispose of such bonds or other obligations of the
Corporation for its corporate purposes;
To purchase, receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise
acquire, own, hold, improve, employ, use and otherwise deal in and with, real or personal
property, or any interest therein, wherever situated, and to sell, convey, lease, exchange,
transfer or otherwise dispose of, or mortgage or pledge, all or any of the Corporations property
and assets, or any interest therein, wherever situated; and
To engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in no wise limited or restricted by reference to, or inference from, the terms of
any other clause in this Restated Certificate of Incorporation, but the business and purposes
specified in each of the foregoing clauses of this article shall be regarded as independent
business and purposes.
Fourth:
The total number of shares of all classes of stock which the Corporation shall be
authorized to issue is 425,000,000 shares, of which 400,000,000 shares, $.16-2/3 par value, shall
be a class designated Common Stock (hereinafter called Common Stock) and 25,000,000 shares,
without par value, shall be a class designated Preferred Stock (hereinafter called Preferred
Stock).
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1. |
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The Board of Directors of the Corporation is hereby expressly granted
authority, subject to the provisions of this Restated Certificate of Incorporation, to
authorize in accordance with law from time to time the issue of one or more series of
Preferred Stock and with |
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respect to any such series to fix the numbers, designations, rights, preferences and
limitations of such series, including, but without limiting the generality of the foregoing, the
following: |
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(a) |
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entitling the holders thereof to cumulative, non-cumulative or partially cumulative
dividends, or to no dividends; |
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(b) |
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entitling the holders thereof to receive dividends payable on a parity with, junior to, or
in preference to, the dividends payable on any other class or series of capital stock of the
Corporation; |
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(c) |
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entitling the holders thereof to rights upon the liquidation of, or upon any distribution of
the assets of, the Corporation, on a parity with, junior to or in preference to, the rights
of any other class or series of capital stock of the Corporation; |
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(d) |
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providing for the conversion, at the option of the holder or of the Corporation or both, of
the shares of Preferred Stock into shares of any other class or classes of capital stock of
the Corporation or of any series of the same or any other class or classes or into property of
the Corporation or into the securities or properties of any other Corporation or person, or
providing for no conversion; |
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(e) |
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providing for the redemption, in whole or in part, of the shares of Preferred Stock at the
option of the Corporation, in cash, bonds or other property, at such price or prices, within
such period or periods, and under such conditions as the Board of Directors shall so provide,
including provision for the creation of a sinking fund for the redemption thereof, or
providing for no redemption; and |
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(f) |
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lacking voting rights or having limited voting rights or enjoying general, special or
multiple voting rights. |
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The Board of Directors may change the designation, rights, preferences, limitations, description
and terms of, and number of shares in, any series of Preferred Stock as to which no shares have
theretofore been issued. |
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All shares of any one series of Preferred Stock shall be identical in all respects with all the
other shares of such series, except that shares of any one series of |
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Preferred Stock issued at different times may differ as to the dates from which
dividends thereon shall be cumulative. |
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2. |
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Shares of any series of Preferred Stock which have been redeemed (whether through the
operation of a sinking fund or otherwise) or purchased by the Corporation, or which, if
convertible, have been converted into shares of the Corporation of any other class or classes
or into property of the Corporation or into the securities or properties of any other
corporation or person, shall be deemed retired and shall have the status of authorized and
unissued shares of preferred Stock which are not classified into any series. |
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3. |
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No holder of Preferred Stock shall have any pre-emptive right as such holder to subscribe
for, purchase or receive any part of any new or additional issue of capital stock of any
class or series, including unissued and treasury stock, or obligations or other securities
convertible into or exchangeable for capital stock of any class or series, or warrants or
other instruments evidencing rights or options to subscribe for, purchase or receive any
capital stock of any class or series, whether now or, hereafter authorized and whether issued
for cash or other consideration or by way of dividend. |
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A. |
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Series A Participating Preferred Stock |
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Section l. Designation and Amount. The Board of Directors of the Corporation, in
accordance with the provisions of the Restated Certificate of Incorporation, created a series
of Preferred Stock of the Corporation to be designated as Series A Participating Preferred
Stock (the Series A Preferred Stock) and the number of shares constituting such series
shall be 4,000,000. |
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Section 2. Dividends and Distributions. The holders of shares of Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends payable in
cash on the first day of January, April, July and October in each year (each such date being
referred to herein as a Quarterly Dividend Payment Date), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to
the greater of (a) $3.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or |
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other distributions other than a dividend or distribution payable in shares of Common Stock or a
subdivision of the outstanding shares of common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $.16-2/3 per share, of the Corporation (the Common Stock) since
the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a share of series A
Preferred Stock. If on any Quarterly Dividend Payment Date the Corporations Restated Certificate
of Incorporation shall limit the amount of dividends which may be paid on the Series A Preferred
Stock to an amount less than that provided above, such dividends will be paid in the maximum
permissible amount and the shortfall from the amount provided above shall accrue and be a
cumulative dividend requirement and be carried forward to subsequent Quarterly Dividend Payment
Dates. |
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In the event the Corporation shall at any time declare or pay any dividend on Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the second preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event. |
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When, as and if the Corporation shall declare a dividend or distribution on
the Common Stock
(other than a dividend payable in shares of Common Stock), the corporation shall at the same time
declare a dividend or distribution on the Series A Preferred Stock as provided in this
Section 2 and no such dividend or distribution on the common
Stock shall be paid or set aside for
payment on the common Stock unless such dividend or distribution on the Series A Preferred Stock
shall be simultaneously paid or set aside for payment; provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $3.00
per share on the Series A Preferred Stock shall nevertheless be
payable, when, as and if declared
by the Board of Directors, on such subsequent Quarterly Dividend Payment Date. |
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Dividends shall begin to accrue and be cumulative on outstanding shares of Series A preferred
Stock from the date of issue of such shares of Series A Preferred Stock, unless the date of issue
is a Quarterly Dividend Payment Date or is a date after the record date for the determination of
holders of shares of Series A preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in which event such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of shares of Series
A Preferred Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the relevant Quarterly Dividend
Payment Date. |
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Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the
following voting rights: |
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(a) |
|
Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Corporation. In the event the Corporation shall at any time
(i) declare or pay any dividend or make any distribution on Common Stock payable in shares of
Common Stock, (ii) effect a subdivision or combination or consolidation of the outstanding
shares of Common stock (by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of Common stock or (iii)
increase by 20% or more, other than through the methods referred to
in subclauses (i) and (ii)
above, the shares of Common Stock outstanding as compared with the shares of Common Stock
outstanding on the date hereof (adjusted for any stock dividend, subdivision or combination to
which subclauses (i) and (ii) above apply), then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were entitled immediately prior
to such event shall be adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and
the denominator |
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of which is the number of shares of Common Stock that were outstanding immediately prior
to such event. |
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(b) |
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Except as otherwise provided herein or by law, the holders of shares of Series A Preferred
Stock, the holders of shares of Common Stock and the holders of any other capital stock of
the Corporation at the time entitled thereto shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation and notwithstanding that the holders
of Series A Preferred Stock, voting as a class, may be entitled to elect two directors as
hereinafter provided, they shall be entitled to participate with the Common Stock (or any
other capital stock as aforesaid), in the election of any other directors. |
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(c) |
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In case at any time six or more full quarterly dividends (whether consecutive or not) an the
Series A Preferred Stock shall be in arrears, then during the period (hereinafter in this
Section 3(c) called the Voting period) commencing with such time and ending with the time
when all arrears in dividends on the Series A Preferred Stock shall have been paid and the
full dividend on the Series A Preferred Stock for the then current quarterly dividend period
shall have been declared and paid or set aside for payment, at any meeting of the
stockholders of the Corporation held for the election of directors during the Voting Period,
the holders of Series A Preferred Stock present in person or represented by proxy at said
meeting, shall be entitled, as a class, to the exclusion of the holders of all other classes
of stock of the Corporation, to elect two directors of the Corporation, each share of series
A Preferred Stock entitling the holder to one vote. Each of such two directors shall be
elected to one of the three classes of directors so that the three classes shall be as equal
in number as may be feasible and shall be elected to hold office for a term expiring at the
earlier of (i) the expiration of the term of the class to which he is elected or (ii) the end
of the Voting Period. At no time shall the Board of Directors have more than two directors
elected solely by the holders of the Series A Preferred Stock. |
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Any director who shall have been elected by holders of Series A Preferred Stock or by any director
so elected as herein contemplated, may be removed at any time during a Voting Period, |
- 7 -
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either for or without cause, by, and only by, the affirmative votes of the holders of
record of a majority of the outstanding shares of Series A Preferred Stock given at
a special meeting of such stockholders called for the purpose, and any vacancy thereby
created may be filled during such Voting Period by the holders of Series A Preferred Stock
present in person or represented by proxy at such meeting. Any director to be elected by the
Board of Directors of the Corporation to replace a director elected by holders of Series A
Preferred Stock or elected by a director as in this sentence provided shall be elected by
the remaining director theretofore elected by the holders of Series A Preferred Stock. At
the end of the Voting Period the holders of Series A Preferred Stock shall be automatically
divested of all voting power vested in them under this Section 3 (c) but subject always to
the subsequent vesting hereunder of voting power in the holders of Series A Preferred Stock
in the event of any similar default or defaults thereafter. |
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(d) |
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Except as set forth herein, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock or holders of any other class of capital stock as set
forth herein) for taking any corporate action. |
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Section 4. Certain Restrictions. |
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(a) |
|
Whenever quarterly dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not |
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(i) |
|
declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock; |
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(ii) |
|
declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then
entitled; |
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(iii) |
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except as permitted by subparagraph (iv) of this paragraph 4 (a), redeem or purchase or
otherwise acquire for consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or |
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(iv) |
|
purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or
any shares of stock ranking on a parity with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes, provided that the
Corporation may at any time purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred Stock. |
- 9 -
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(b) |
|
The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (a) of this Section 4, purchase or otherwise acquire
shares at such time and in such manner. |
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(c) |
|
The Corporation shall not issue any shares of Series A Preferred Stock except upon
exercise of Rights issued pursuant to that certain Rights Agreement
dated as of June 1, 1988
between the Corporation and Texas Commerce National Bank Association, a copy of which is on
file with the Secretary of the Corporation at its principal executive
office and shall be
made available to stockholders of record without charge upon written
request therefor
addressed to said Secretary. Notwithstanding the foregoing sentence, nothing contained in
this Certificate shall prohibit or restrict the Corporation from issuing for any purpose any
series of preferred stock with rights and privileges similar to or different from those of
the Series A Preferred Stock. |
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Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their cancellation without
designation as to series, become authorized but unissued shares of preferred stock and may be
reissued as part of a new series of preferred stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. |
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Section 6. Liquidation, Dissolution or Winding Up. Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to
the holders of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received, subject to adjustment as hereinafter
provided, an aggregate amount equal to (a) $100.00 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date of such payment
or (b) if greater, an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed per
share to holders of Common Stock plus an amount equal to accrued and unpaid |
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dividends and distributions thereon, whether or not declared, to the date of such payment, or
(2) to the holders of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation, dissolution or winding up,
disregarding for this purpose the amounts referred to in clause (1) (b) of this Section 6. In the
event the Corporation shall at any time declare or pay any dividend or make any distribution on
Common Stock payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under the provision in clause (l) of
the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event. |
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Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case proper provision shall be made so that the shares of Series A Preferred Stock shall
at the same time be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. The Corporation shall not consummate
any such consolidation, merger, combination or other transaction unless prior thereto the
Corporation and the other party or parties to such transaction shall have so provided in any
agreement relating thereto. In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set |
- 11 -
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forth in the preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event. |
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Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable. Notwithstanding the foregoing sentence, the Corporation may acquire
shares of Series A Preferred Stack in any other manner permitted by law and this
Restated Certificate of Incorporation of the Corporation, as from time to time
amended. |
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Section 9. Amendment. The Restated Certificate of Incorporation of the
Corporation shall not be amended in any manner which would alter or change the
powers, preferences or special rights of the shares of Series A Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of two-thirds or
more of the outstanding shares of Series A Preferred Stock, voting together as a
single class. |
II. |
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Common Stock |
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Subject to the prior and superior rights of the Preferred stock and on the conditions set
forth in the foregoing parts of this Article Fourth or in any resolution of the Board of
Directors providing for the issuance of any particular series of Preferred Stock, and not
otherwise, such dividends (payable in cash, Stock or otherwise) as may be determined by the
Board of Directors may be declared and paid on the Common Stock from time to time out of any
funds legally available therefor. |
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Except as otherwise provided by law, by this Restated Certificate of Incorporation or by
the resolution or resolutions of the Board of Directors providing for the issue of any
series of the Preferred Stock, the Common Stock shall have the exclusive right to vote for
the election of Directors and for all other purposes, each holder of the Common Stock being
entitled to one vote for each share held. |
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Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, and after the holders of the preferred Stock of each series shall have been
paid in full the amounts to which they respectively shall be entitled, or a sum sufficient
for such payments in full shall have been set aside, the remaining net assets of the
Corporation shall be distributed pro rata to the holders of |
- 12 -
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the Common Stock in accordance with their respective rights and interests, to the
exclusion of the holders of the Preferred stock. |
Fifth: The Corporation is to have perpetual existence.
Sixth:
In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized:
|
(1) |
|
To make, alter or repeal the by-laws of the Corporation. |
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(2) |
|
To authorize and cause to be executed mortgages and liens upon the real and
personal property of the Corporation. |
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(3) |
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To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such reserve
in the manner in which it was created. |
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(4) |
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By a majority of the whole Board of Directors, to designate one or more
committees, each committee to
consist of two or more of the directors of the Corporation. The Board of Directors
may designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. Any such
committee, to the extent provided in the resolution or in the by-laws of the
Corporation, shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the seal
of the Corporation to be affixed to all papers which may require it; provided,
however, the by-laws may provide that in the absence or disqualification of any
member of such committee or committees the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member. |
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(5) |
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when and as authorized by the affirmative vote of the holders of a majority of
the stock issued and outstanding having voting power given at a stockholders meeting
duly called upon such notice as is required by statute to sell, lease or exchange all
or substantially all the property and assets of the Corporation, including its
goodwill and its corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or property including
securities of any other |
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corporation or corporations, as the Board of Directors shall deem expedient and
for the best interests of the Corporation. |
Seventh: Whenever a compromise or arrangement is proposed between the Corporation and its creditors
or any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction with the State of Delaware may, on the application in a summary way
of the Corporation or of any creditor or stockholder thereof or on the application of any receiver
or receivers appointed for the Corporation under the provisions of section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as
consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the Corporation.
Eighth: Meetings of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the Corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the by-laws of the Corporation. Elections of
directors need not be by written ballot unless the by-laws of the Corporation shall so provide.
Advance notice of stockholder nominations for the election of directors shall be given in the
manner provided in the by-laws of the Corporation.
Ninth: The Board of Directors shall be divided into three classes as equal in number as may be
feasible, with the term of office of one class expiring each year. At the annual meeting of
stockholders in 1985, directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual meeting and directors of the third
class shall be elected to hold office for a term expiring at the third succeeding annual meeting.
At each annual meeting of stockholders after 1985, successors to the directors whose terms shall
then expire shall be elected to hold office for terms expiring at the third succeeding annual
meeting. In case of any vacancies, by reason of an increase in the number of directors or
otherwise, each additional director may be elected by the Board of Directors to hold office until
the end of the term he
- 14 -
is elected to fill and until his successor shall have been elected and qualified in the class to
which such director is assigned and for the term or remainder of the term of such class. Directors
shall continue in office until others are chosen and qualified in their stead. When the number of
directors is changed, any newly created directorships or any decrease in directorships shall be so
assigned among the classes by a majority of the directors then in office, though less than a
quorum, as to make all classes as equal in number as may be feasible. No decrease in the number of
directors shall shorten the term of any incumbent director.
Any director may be removed from office as a director, but only for cause, by the affirmative vote
at a meeting called as provided in the
by-laws for that purpose of 80% in interest of the holders
of voting stock of the Corporation issued and outstanding including a majority in interest of the
holders of issued and outstanding voting stock of the Corporation held by persons other than any
person who is the beneficial owner, directly or indirectly of more than 10% of the voting stock of
the corporation entitled to vote at such meeting, or any affiliate or associate of any such person
(as the terms affiliate and associate are defined in Rule l2b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on December 31, 1984).
Notwithstanding the foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be governed by the
terms of this Restated Certificate of Incorporation applicable thereto, and such directors so
elected shall not be divided into classes pursuant to this Article Ninth unless expressly provided
by such terms.
Tenth: The number of directors to constitute the whole Board of Directors shall be such number as
shall be fixed from time to time by resolution of the Board of Directors.
Eleventh:
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1. |
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Any Business Combination (as defined in Paragraph (a) of Section 4 of this
Article Eleventh) shall require only such affirmative vote as is required by law and
any other provision of this Restated Certificate if all of the following conditions
have been satisfied: |
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(i) |
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The consideration to be received by holders of Common Stock
shall be cash or in the same form as previously has been paid by or on behalf
of the Interested Stockholder in connection with its direct or indirect
acquisition of beneficial ownership of any shares of Common Stock. If the
consideration paid by or on behalf of the Interested Stockholder for shares of |
- 15 -
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Common Stock varied as to form, the form of consideration to be received by holders of
Common Stock, shall be either cash or the form used to acquire beneficial ownership of
the largest number of shares of Common Stock previously acquired by the Interested
Stockholder. |
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(ii) |
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The aggregate amount of the cash and the Fair Market Value (as defined in Paragraph (i) of
Section 4 of this Article Eleventh) of consideration other than cash to be received per share
by holders of Common Stock in any Business Combination shall be at least equal to the greater
of (a) the Fair Market Value per share of Common Stock on the date of the first public
announcement of the proposal of a Business Combination (the Announcement Date) or on the
date on which the Interested Stockholder became an Interested Stockholder, whichever is
higher, multiplied by the ratio of (1) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers fees) paid by the Interested Stockholder
for any shares of Common Stock acquired by it within the two-year period immediately prior to
the Announcement Date to (2) the Fair Market Value per share of Common stock on the first day
in such two-year period on which the Interested Stockholder acquired any shares of Common
Stock or (b) the highest per share price (including brokerage commissions, transfer taxes and
soliciting dealers fees) paid by such Interested Stockholder in acquiring any of the
Corporations Common Stock; |
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(iii) |
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After becoming an Interested Stockholder and prior to the consummation of any Business
Combination, (A) such Interested Stockholder shall not have acquired any newly issued shares
of capital stock, directly or indirectly, from the Corporation (except upon conversion of
convertible securities acquired by it prior to becoming an Interested Stockholder or upon
compliance with the provisions of this Article Eleventh or as a result of a pro rata stock
dividend or stock split) and (B) such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or |
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other financial assistance or tax credits provided by the Corporation, or made any
major changes in the Corporations business or equity capital structure; and |
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(iv) |
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A proxy statement responsive to the requirements of the Securities Exchange
Act of 1934, whether or not the Corporation is then subject to such requirements,
shall be mailed to the stockholders of the Corporation for the purpose of soliciting
stockholder approval of any Business Combination and shall contain at the front
thereof in a prominent place any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing Directors may choose
to state, and if deemed advisable by a majority of the Continuing Directors, an
opinion of a reputable investment banking firm as to the fairness (or lack of
fairness) of the terms of such Business Combination from the point of view of the
holders of Voting Shares (as defined in Paragraph (e) of Section 4 of this Article
Eleventh) other than the Interested Stockholder (such investment banking firm to be
selected by a majority of the Continuing Directors, to be furnished with all
information it reasonably requests, and to be paid a reasonable fee for its services
upon receipt by the Corporation of such opinion). |
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2. |
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If the provisions of Section 1 of this Article Eleventh have not been satisfied, any
Business Combination shall require the affirmative vote, in person or by proxy, at any
meeting called as provided in the by-laws, of the holders of 80% in interest of the Voting
Shares of the Corporation issued and outstanding including a majority in interest of the
holders of issued and outstanding Voting Shares of the Corporation held by persons other than
an Interested Stockholder as defined in Paragraph (c) of Section 4 of Article Eleventh
hereof or any Affiliate or Associate of any Interested Stockholder. Such affirmative vote
shall be required notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified by law or in any agreement with any national securities exchange
or otherwise. |
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3. |
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The provisions of Sections 1 and 2 of this Article Eleventh shall not be applicable to any
particular Business Combination, and such Business Combination Shall require only such
affirmative vote, if any, as is required by law and any other provision of this Restated
Certificate, if such Business Combination (i) has been approved prior to its consummation by
a |
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majority of the Continuing Directors or (ii) constitutes a merger or consolidation of the
Corporation with, or any sale or lease to the Corporation or any
Subsidiary (as defined in
Paragraph (g) of Section 4 of this Article Eleventh) of any assets of, or any sale or lease
by the Corporation or any Subsidiary of any of its assets to, any corporation of which a
majority of the outstanding shares of all classes of stock entitled to vote in elections of
directors is owned of record or beneficially by the Corporation or its Subsidiaries,
provided that this clause (ii) shall not apply to any transaction to which any Affiliate (as
defined in Paragraph (f) of Section 4 of this Article Eleventh) of any Interested
Stockholder is a party. |
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4. |
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For the purposes of this Article Elevenths: |
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(a) |
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The term Business Combination as used in this Article Eleventh shall mean
any transaction which is referred to in any one or more of clauses (i) through (vi) of
this Paragraph (a): |
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(i) |
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any merger or consolidation of the Corporation or any Subsidiary
with or into (A) any Interested Stockholder or (B) any other corporation
(whether or not itself an Interested Stockholder) which immediately before is,
or after such merger or consolidation would be, an Affiliate of an Interested
Stockholder, or |
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(ii) |
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any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions) to or with
any Interested Stockholder or any Affiliate of any Interested Stockholder of
any assets of the Corporation or any Subsidiary when such assets have an
aggregate fair market value of $25,000,000 or more, or |
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(iii) |
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the issuance or transfer to any Interested Stockholder or any
Affiliate of any Interested Stockholder by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any equity
securities of the Corporation or any Subsidiary where such equity securities
have an aggregate fair market value of $10,000,000 or more, or the adoption |
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(iv) |
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of any plan or proposal for the liquidation or dissolution of the
Corporation, or |
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(v) |
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any reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any similar transaction (whether or not with or into or
otherwise involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the percentage of the outstanding shares of any class of
equity or convertible securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Interested Stockholder or any Affiliate of any Interested
Stockholder, or |
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(vi) |
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any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination. |
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(b) |
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A person shall mean any individual, firm, corporation or other entity. |
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(c) |
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Interested Stockholder shall mean any person (other than the Corporation or any Subsidiary)
who or which, along with its Affiliates and Associates (as defined in Paragraph (f) of this
Section 4) as of the record date for the determination of stockholders entitled to notice of
and to vote on any Business Combination or any proposed amendment, alteration or repeal of
any provision of this Restated Certificate or any by-law of the Corporation, or immediately
prior to the consummation of any such Business Combination: |
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(i) |
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is the beneficial owner (as defined in Paragraph (d) of this Section 4),
directly or indirectly, of more than 10% of the Voting Shares of the Corporation or a
Subsidiary, or |
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(ii) |
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is an assignee of or has otherwise succeeded to any share of capital stock of
the Corporation or a Subsidiary which was at any time within two years prior thereto
beneficially owned by any Interested Stockholder, and such assignment |
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or succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the Securities
Act of 1933. |
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A person shall be the beneficial owner of any Voting Shares: |
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which such person or any of its Affiliates and Associates beneficially own,
directly or indirectly, or |
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which such person or any of its Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise or (B) the right
to vote pursuant to any agreement, arrangement or understanding, or |
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(iii) |
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which are beneficially owned, directly or indirectly, by any other person
with which such first-mentioned person or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of capital stock of the Corporation or a Subsidiary, as the
case may be. |
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Voting Shares when used with respect to the Corporation or a Subsidiary shall mean shares
of such corporation having general voting power. For the purpose of determining whether a
person is an Interested Stockholder pursuant to Paragraph (c) of this Section 4, the
outstanding Voting Shares shall include shares deemed owned by a beneficial owner through
application of Paragraph (d) of this Section 4 but shall not include any other Voting Shares
which may be issuable to any other person pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise. |
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Affiliate and Associate shall have the respective meanings given those terms in Rule
l2b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1984. |
- 20 -
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Subsidiary shall mean any corporation of which a majority of any class of
equity security (as defined in Rule 3all-1 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on December 31, 1984) is owned,
directly or indirectly, by the Corporation; provided, however, that
for the purposes of the definition of Interested Stockholder set forth in Paragraph
(c) of this Section 4, the term Subsidiary shall mean only a corporation of which a
majority of each class of equity security is owned, directly or indirectly, by the
Corporation. |
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Continuing Director shall mean a person who was a member of the Board of
Directors of the Corporation elected by the stockholders prior to the date as of which
an Interested Stockholder acquired in excess of 10% of the Voting Shares of the
Corporation or a Subsidiary, or a director who has been recommended to directly
succeed a Continuing Director or to join the Board of Directors by a majority of the
remaining Continuing Directors. |
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(i) |
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Fair Market Value shall mean (i) in the case of stock, the highest closing
sale price during the 30-day period immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock Exchange - Listed Stocks,
or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934 on which such
stock is listed, or, if such stock is not listed on any such exchange, the highest
closing bid quotation with respect to a share of such stock during the 30-day period
preceding the date in question on the National Association of Securities Dealers,
Inc. Automated Quotations Systems or any system then in use, or, if no such quotations
are available, the fair market value on the date in question of a share of such stock
as determined in good faith by a majority of Continuing Directors, and (ii) in the
case of property other than cash or stock, the fair market value of such property on
the date in question as determined in good faith by a majority of Continuing
Directors. |
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The Continuing Directors, by a majority vote, shall have the power and duty to determine for
the purposes of this Article Eleventh on the basis of information |
- 21 -
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known to them (a) the number of Voting Shares beneficially
owned by any person, (b) whether a person is an Affiliate or Associate of
another, (c) whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in Paragraph (d) of Section 4 of this Article
Eleventh, (d) whether the assets of the Corporation or any Subsidiary have an
aggregate fair market value of $25,000,000 or more, or (e) whether the consideration
received for the issuance or transfer of securities by the Corporation or any
Subsidiary has an aggregate fair market value of $10,000,000 or more. |
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6. |
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Nothing contained in this Article Eleventh shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law. |
Twelfth: Except as otherwise provided in this Restated Certificate (and in addition to any other
vote that may be required by law, this Restated Certificate or the by-laws), the affirmative vote,
in person or by proxy, at any meeting called as provided in the by-laws, of the holders of 80% in
interest of the voting stock of the Corporation issued and outstanding including a majority in
interest of the holders of the issued and outstanding voting stock of the Corporation held by
persons other than an Interested Stockholder as defined in Paragraph (c) of Section 4 of Article
Eleventh hereof shall be required to amend, alter or repeal Articles Eighth, Ninth, Tenth,
Eleventh, Twelfth and Thirteenth of this Restated Certificate and Sections 2.4, 2.8, 2.12, 3.2 and
3.3 and Article XII of the by-laws of the Corporation or to adopt any new provision inconsistent
with such Articles or Sections provided, however, that if at the time of any such proposed
amendment, alteration, repeal or adoption, (a) there shall exist one or more Interested
Stockholders (as defined in Paragraph (c) of Section 4 of Article Eleventh), and a majority of the
Continuing Directors (as defined in Paragraph (h) of Section 4 of Article Eleventh) approve such
proposed amendment, alteration, repeal or adoption, or (b) no such Interested Stockholder exists,
and a majority of the members of the Board of Directors approve such proposed amendment,
alteration, repeal or adoption, then the affirmative vote, in person or by proxy, at any meeting
called as provided in the by-laws, of the holders of a majority in interest of the issued and
outstanding voting stock of the Corporation shall be required to approve such amendment,
alteration, repeal or adoption.
Thirteenth: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders. Special
meetings of stockholders of the Corporation may be called only by the Board of Directors pursuant
to a resolution approved by a majority of the entire Board of Directors.
- 22 -
Fourteenth: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper benefit.
Fifteenth: The Corporation reserves the right to amend, alter change or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are granted subject to this
reservation.
IN WITNESS WHEREOF, we have signed this Restated Certificate this 7th day of October, 1991.
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BROWNING- FERRIS INDUSTRIES, INC.
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(Corporate seal) |
By: |
/s/
Gerald K. Burger
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Gerald K. Burger |
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Vice President |
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ATTEST: |
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By:
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/s/ Eileen B. Schuler
Eileen B. Schuler
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Assistant Secretary |
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- 23 -
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THE STATE OF TEXAS
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) ( |
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) (
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ss. |
COUNTY OF HARRIS
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) ( |
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BE IT
REMEMBERED that on this 7th day of October, 1991, personally came before me, the
undersigned, a Notary Public duly authorized to take acknowledgement of deeds by the laws of the
place where the foregoing Restated Certificate of Incorporation was executed, Gerald K. Burger and
Eileen B. Schuler, Vice President and Assistant Secretary, respectively of BROWNING-FERRIS
INDUSTRIES, INC., a corporation of the State of Delaware, the corporation described in the
foregoing Restated Certificate of Incorporation, known to me
personally to be such, and they duly
executed said Restated Certificate of Incorporation before me and acknowledged the said Restated
Certificate of Incorporation to be their act and deed and made on behalf of said corporation, and
that the facts stated therein are true.
GIVEN under my hand on October 7, 1991.
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/s/ [ILLEGIBLE]
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Notary Public in and for |
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the State of Texas
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My Commission Expires:
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11/13/93
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- 24 -
CERTIFICATE OF CONVERSION
FROM A CORPORATION TO A LIMITED LIABILITY COMPANY
PURSUANT TO SECTION 266 OF THE DELAWARE GENERAL CORPORATION
LAW
1. |
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The name of the corporation is Browning-Ferris Industries, Inc. |
2. |
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The name under which the corporation was originally incorporated is BFI, Inc. |
3. |
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The date on which the original Certificate of Incorporation was filed with the Secretary
of State is October 26, 1970. |
4. |
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The name of the limited liability company into which the corporation is herein being
converted is Browning-Ferris Industries, LLC. |
5. |
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The conversion has been approved in accordance with the provisions of Section 266. |
Dated: December 31, 2004
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By: |
/s/ Jo Lynn White
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Name: |
Jo Lynn White |
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Title: |
Secretary |
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 10:47 AM 12/31/2004 |
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FILED 09:03 AM 12/31/2004 |
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SRV 040956463 0764126 FILE |
CERTIFICATE OF FORMATION
OF
BROWNING-FERRIS INDUSTRIES, LLC
This Certificate of Formation of Browning-Ferris Industries, LLC (the LLC), dated as of
December 31, 2004, is being duly executed and filed by Jo Lynn White, as an authorized person, to
form a limited liability company under the Delaware Limited Liability Company Act
(6
Del. C. §18-101, et. seq.).
FIRST: The name of the limited liability company formed hereby is Browning-Ferris Industries,
LLC.
SECOND: The address of the registered office of the LLC in the State of Delaware is c/o The
Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County of New Castle,
19801.
THIRD: The name and address of the registered agent for service of process on the LLC in the
State of Delaware is The Corporation Trust Company, 1209 Orange Street, in the City of Wilmington,
County of New Castle, 19801.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date
first above written.
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/s/ Jo Lynn White
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Jo Lynn White |
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Authorized Person |
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 10:47 AM 12/31/2004 |
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FILED 09:03 AM 12/31/2004 |
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SRV 040956463 0764126
FILE |
exv3w340
Exhibit 3.340
OPERATING AGREEMENT OF
BROWNING-FERRIS INDUSTRIES, LLC
This Operating Agreement is executed as of December 31, 2004, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall
have the meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Browning-Ferris Industries, LLC. The name of
the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New
Castle. The registered office may be changed to any other place within the State of Delaware upon
the consent of the Member. The Company may maintain a registered office in any state within which
it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware 19801. The Companys agent for service of legal process
may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the
Certification of Formation is filed in Delaware, and shall continue in perpetuity until the
Company is dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company,
which shall bear interest and be repaid on such reasonable terms and conditions as may be approved
by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of
the proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Law, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any
corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this
Agreement. If any Person is admitted as a Substituted Member pursuant to the terms of this
Agreement, Member shall also be deemed to refer to such Person. Member refers collectively to
all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc. |
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$ |
100 00 |
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15880 N Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, AZ 85260 |
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exv3w341
Exhibit 3.341
CERTIFICATE OF INCORPORATION
OF
BROWNING-FERRIS SERVICES, INC.
* * * * *
1. The name of the corporation is Browning-Ferris Services, Inc.
2. The address of its registered office in the State of Delaware is Corporation Trust Center,
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
In general, to possess and exercise all the powers and privileges granted by the General
Corporation Law of Delaware or by any other law of Delaware or by this Certificate of
Incorporation together with any powers incidental thereto, so far as such powers and privileges
are necessary or convenient to the conduct, promotion or attainment of the business or purposes of
the corporation.
The business and purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in nowise limited or restricted by reference to, or inference from, the terms of any
other clause in this Certificate of Incorporation, but the business and purposes specified in each
of the foregoing clauses of this article shall be regarded as independent business and purposes.
4. The total number of shares of stock which the corporation shall have authority to issue is:
One Thousand (1,000) and the par value of each of such shares is One Dollars and Zero Cents ($1)
amounting in the aggregate to One Thousand Dollars and Zero Cents ($1,000).
5. The name and mailing address of each incorporator is as follows:
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NAME |
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MAILING ADDRESS |
J. McBurnett |
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811 Dallas Ave., Houston, Texas 77002 |
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P. Voss |
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811 Dallas Ave., Houston, Texas 77002 |
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J. Sinski |
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811 Dallas Ave., Houston, Texas 77002 |
-1-
The name and mailing address of each person who is to serve as a director until the first
annual meeting of the stockholders or until a successor is elected and qualified, is as follows:
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NAME |
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MAILING ADDRESS |
Eileen B. Schuler |
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757 N. Eldridge, Houston, Texas 77079 |
6. The corporation is to have perpetual existence.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose
of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make
this Certificate, hereby declaring and certifying that this is our act and deed and the facts
herein stated are true, and accordingly have hereunto set our hands this Nineteenth Day of May,
1999.
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/s/ J. McBurnett
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J. McBurnett |
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/s/ P. Voss |
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P. Voss |
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/s/ J. Sinski |
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J. Sinski |
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-2-
CERTIFICATE OF OWNERSHIP AND MERGER
OF
BROWNING-FERRIS SERVICES, INC.
INTO
BFI WASTE SYSTEMS OF NORTH AMERICA, INC.
BFI Waste Systems of North America, Inc., a corporation organized and existing under the
laws of Delaware,
DOES HEREBY CERTIFY:
FIRST: That this corporation was incorporated on the 23rd day of May 1991, pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That this corporation owns all of the outstanding shares of the stock of:
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State of |
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Date of |
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Incorporation |
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Incorporation |
Browning-Ferris Services, Inc.
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Delaware
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September 18, 1979 |
THIRD: That this corporation, by the following resolutions adopted by written consent of
the sole director, on the 30th day of December, 1998, determined to and did merge into itself said
Browning-Ferris Services, Inc.
RESOLVED, that BFI Waste Systems of North America, Inc. merge, and it hereby does merge
into itself said Browning-Ferris Services, Inc., a Delaware corporation, and the Company
will be the surviving corporation in the merger and assumes all of its obligations; and
RESOLVED FURTHER, that the form, terms and provisions of the Plan of Merger which conform
to Delaware law, attached hereto as Exhibit A, are hereby authorized, approved and
adopted; and
RESOLVED FURTHER, that the proper officer of this corporation be and he or she is hereby
directed to make and execute a Certificate of Ownership and Merger setting forth a copy of
the resolutions to merge said Browning-Ferris Services, Inc. and assume its liabilities and
obligations, and the date of adoption thereof, and to cause the same to be filed with the
Secretary of State and to do all acts and things whatsoever, whether within or without the
State
of Delaware, which may be in anywise necessary or proper to effect said merger.
IN WITNESS WHEREOF, said BFI Waste Systems of North America, Inc. has caused this Certificate to
be signed by Eileen B, Schuler, its Vice President this 30th day of December, 1998.
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BFI WASTE SYSTEMS
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OF NORTH AMERICA, INC. |
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By:
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/s/ Eileen B. Schuler |
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Eileen B. Schuler |
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Vice President |
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Exhibit A
PLAN OF MERGER
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A. |
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The name of the merged corporation is: |
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State of |
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Incorporation |
Browning-Ferris Services, Inc.
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Delaware |
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B. |
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The name of the surviving corporation is: |
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BFI Waste Systems of North America, Inc., a Delaware corporation (the Surviving
Corporation). |
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C. |
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BFI Waste Systems of North America, Inc. shall be the surviving corporation and does hereby
merge with and into itself, Browning-Ferris Services, Inc. (the Merged Corporation). The
Articles of Incorporation and By-Laws of BFI Waste Systems of North America, Inc. shall be
the Articles of Incorporation and By-Laws of the Surviving Corporation. |
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D. |
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On the effective date of the merger, each share of the issued and outstanding stock of the
Merged Corporation shall forthwith be canceled and no shares of the Surviving Corporation will
be issued in exchange therefor. All of the property, rights, privileges, leases and patents of
the Merged Corporation are to be transferred to and become the property of the Surviving
Corporation. The officers and sole director of each of the Merged and Surviving Corporations
are authorized to execute all deeds, assignments and documents of every nature which may be
needed to effectuate a full and complete transfer of ownership. |
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E. |
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The effective date of the merger for tax and accounting purposes shall be December 31, 1998. |
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exv3w342
Exhibit 3.342
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof. |
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w343
Exhibit 3.343
ARTICLES OF INCORPORATION
OF
BROWNING-FERRIS, INC.
THIS IS TO CERTIFY:
FIRST: That I, the subscriber, Mary N. Humphries, whose post office address is 1800 Mercantile Bank
and Trust Building, 2 Hopkins Plaza, Baltimore, Maryland 21201, being at least eighteen (18) years
of age, do under and by virtue of the General laws of the State of Maryland authorizing the
formation of corporations, set forth and execute these articles with the intention of forming a
corporation.
SECOND: That the name of the corporation (which is hereinafter called the CORPORATION) is:
BROWNING-FERRIS, INC.
THIRD: The
purposes for which the CORPORATION is formed are as follows:
(a) To engage in and carry on the business of (i) collecting, handling, and transporting waste
material, refuse, rubbish and trash of all kinds (herein referred to as refuse) including, by way
of illustration and not limitation, industrial, commercial and residential refuse, (ii) the
disposition of refuse by all lawful means including, by way of illustration and not limitation,
landfills, incineration and compaction, and (iii) the salvage, recycling and recovery of refuse,
materials and resources.
(b) To manufacture, purchase, or otherwise acquire, hold, mortgage, pledge, sell, transfer, or
in any manner deal with, encumber or dispose of goods, wares, merchandise, implements and other
property or equipment of every kind.
(c) To carry on any and all business and to exercise any and all powers permitted by the
general corporation laws of
the State of Maryland which may be deemed advisable by the Board of Directors of the Corporation,
whether or not the same as, or related to, the business described in the preceding paragraph (a),
and all things necessary and incidental thereto, to the full extent empowered by such laws.
FOURTH: The post office address of the principal office in this State is 10210 Greenbelt Road,
Seabrook, Maryland 20801. The resident agent of the CORPORATION in this State is The Corporation
Trust Incorporated, whose post office address is First Maryland Building, Floor 10-A, 25 South
Charles Street, Baltimore, Maryland 21201. Said resident agent is a corporation of the State of
Maryland.
FIFTH: The total number of shares of stock of all classes which the CORPORATION has authority to
issue is two hundred thousand (200,000) shares of the par value of One Dollar ($1.00) each, all of
which shares are of one class and are designated Common Stock, and have an aggregate par value of
Two Hundred Thousand Dollars ($200,000.00).
SIXTH: The CORPORATION shall have three Directors, which number may be increased or decreased, but
to not less than three, pursuant to the By-laws of the CORPORATION, and Alfred Tyler II, Stephen L.
Thomas and Norman A. Myers, shall act as such until the first annual
meeting or until their
successors are duly chosen and qualified.
SEVENTH: The following provisions are hereby adopted for the purpose of defining, limiting and
regulating the powers of the CORPORATION and of the directors and stockholders:
(a) The Board of Directors of the CORPORATION is hereby empowered to authorize the issuance
from time to time of shares of its stock, with or without par value, of any class, including
fractional shares, whether now or hereafter authorized, or securities convertible into shares of
its stock of any class whether now or hereafter authorized.
2
(b) No contract or other transaction between this CORPORATION and any other corporation and no
act of this CORPORATION shall in any way be affected or invalidated by the fact that any of the
directors of this CORPORATION are pecuniarily or otherwise interested in, or are directors or
officers of, such other corporation; any directors individually, or any firm of which any director
may be a member, may be a party to or may be pecuniarily or otherwise interested in any contract or
transaction of this CORPORATION, provided that the fact that he or such firm is so interested shall
be disclosed or shall have been known to the entire Board of Directors; and any director of this
CORPORATION who is also a director or officer of such other corporation or who is so interested may
be counted in determining the existence of a quorum at any meeting of the Board of Directors of this
CORPORATION which shall authorize any such contract or transaction, with like force and effect as
if he were not such director or officer of such other corporation or not so interested.
(c) The Board of Directors shall have power, from time to time, to fix and determine and to
vary the amount of working capital of the CORPORATION; and to determine whether any, and if any,
what part, of the surplus of the CORPORATION or of the net profits arising from its business shall
be declared in dividends and paid to the stockholders, subject, however, to the other provisions
set forth in this charter; and to direct and determine the use and disposition of any such surplus
or net profits. The Board of Directors may in its discretion use and apply any such surplus or net
profits in purchasing or acquiring any of the shares of the stock of the CORPORATION, or any of its
bonds or other evidences of indebtedness, to such extent and in such manner and upon such lawful
terms as the Board of Directors shall deem expedient.
3
(d) The CORPORATION reserves the right to make, from time to time, any amendments of its
charter which may now or hereafter be authorized by law, including any amendments changing the
contract rights, as expressly set forth in the charter, of any of its outstanding stock.
(e) Except as otherwise provided in this charter or the Bylaws of the CORPORATION, the Board
of Directors shall have the power to declare and authorize the payment of stock dividends, whether
or not payable in stock of one class to holders of stock of another class or classes, and shall
have the authority to exercise, without a vote of stockholders, all powers of the CORPORATION,
whether conferred by law or by this charter, to purchase, lease or otherwise acquire the business
assets or franchises, in whole or in part, of other corporations or unincorporated business
entities.
(f) The Board of Directors shall have the power to classify or reclassify any unissued shares
of stock whether not or hereafter authorized, by fixing or altering in any one or more respects,
from time to time before issuance of such shares, the dividends on and the preferences, rights,
voting powers, restrictions and qualifications, times and prices of redemption and conversion rights
of such shares.
(g) Notwithstanding any provision of law requiring any action to be taken or authorized by the
affirmative vote of the holders of a designated proportion of the shares of stock of the
CORPORATION or of shares of each class of stock of the CORPORATION, or otherwise to be taken or
authorized by vote of the stockholders, such action shall be effective and valid if taken or
authorized by the affirmative vote of a majority of the total number of votes entitled to be cast
thereon.
(h) No holder of stock of shares of any class shall be entitled as a matter of right to
subscribe for or purchase
4
or receive any part of any new or additional issue of stock of any class or securities convertible
into stock of any class, whether now or hereafter authorized or whether issued for money, for a
consideration other than money or by way of dividend.
EIGHTH: The duration of the CORPORATION shall be perpetual.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation as incorporator, and
acknowledge them to be my act on August 4th, 1978.
WITNESS:
|
|
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/s/ Catherine Davis
|
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/s/ Mary N. Humphries |
|
|
|
|
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Mary N. Humphries |
STATE OF MARYLAND, City OF Baltimore, to wit:
I
HEREBY CERTIFY that on this [Illegible] day of August,
1978, before [illegible], the subscriber, a
Notary Public of the State of Maryland, [Illegible] and for Baltimore City, personally appeared
Mary N. Humphries, and acknowledged the foregoing Articles of Incorporation to be her act.
WITNESS
my hand and Notarial Seal.
5
exv3w344
Exhibit 3.344
AMENDED AND RESTATED BYLAWS
OF
BROWNING-FERRIS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation
or these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken by
the stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or solely because his
or their votes are counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee, in good faith,
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the
fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the duties of the Secretary, and when
so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3.
Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate,
or his legal representative, to advertise the same in such manner as the Board of Directors shall
require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice
may also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person (a) did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, (b) with respect to
any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3.
Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection therewith,
without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3
of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this
Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination
in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
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Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights
to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article VIII to directors and officers of the
Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
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Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w345
Exhibit 3.345
CERTIFICATE OF FORMATION
BRUNSWICK COUNTY LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited
liability company (the Company) formed
by this instrument is Brunswick County Landfill, LLC.
2. Registered Office: Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 21st day of November, 1997.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member |
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By:
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/s/ Steven M. Helm
Steven M. Helm, Vice President/Legal
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CERTIFICATE OF AMENDMENT
OF
BRUNSWICK COUNTY LANDFILL, LLC
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The name of the limited liability company is Brunswick County Landfill, LLC. |
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The Certificate of Formation of the limited liability company is hereby amended as follows: |
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The name of the limited liability company is hereby changed to Brunswick Waste
Management Facility, LLC. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
Brunswick County Landfill, LLC this 15th day of May, 1998.
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ALLIED WASTE NORTH AMERICA,
INC., a Delaware corporation, Sole
Member |
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By:
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/s/ Steven M. Helm
Steven M. Helm
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Vice President, Legal |
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exv3w346
Exhibit 3.346
OPERATING AGREEMENT OF
BRUNSWICK COUNTY LANDFILL, LLC
This Operating Agreement is executed as of November 21, 1997, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Brunswick County Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
2
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and its
affairs shall be made or taken by the Member. Any party dealing with the Company shall be permitted
to rely absolutely on the signature of the Member as binding on the Company, without any duty of
further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2
Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
3
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns
and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.,
a Delaware corporation |
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By: |
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/s/ Henry L. Hirvela
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Its:
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Vice President
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EXHIBIT A
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Initial |
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Capital |
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Name and Address of the Member |
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Contribution |
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Allied Waste North America, Inc.
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100.00 |
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15880 N. Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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exv3w347
Exhibit 3.347
ARTICLES OF INCORPORATION
OF
BUNTING TRASH SERVICE, INC.
WE, THE UNDERSIGNED natural persons of the age of twenty-one years or more, acting as
incorporators of a corporation under the Colorado Corporation Code, adopt the following Articles of
Incorporation for such corporation:
ARTICLE I NAME
The name of this corporation is Bunting Trash Service, Inc.
ARTICLE II DURATION
The duration of this corporation is perpetual.
ARTICLE III PURPOSES
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The purpose or purposes for which this corporation is
organized and the objects and
business to be transacted, promoted and carried on are: |
a. To engage in the buying, selling, and dealing of industrial, residential and
commercial scrap, salvage, refuse, rubbish, trash, junk, offal, garbage, and debris; to
engage in the collection of industrial, residential and commercial scrap, salvage, refuse,
rubbish, trash, junk, offal, garbage, and debris; to engage in the operation and maintenance
of depositories at industrial, residential and commercial locations for the accumulation of
scrap, salvage, refuse, rubbish, trash, junk, offal, garbage, and debris; to engage in the
maintenance of a collection and pickup service therefor; to engage in the business of
transporting of all the above-mentioned materials by any means of conveyance as a common
carrier,
private carrier, contract carrier, or otherwise; and to engage in the maintenance of disposal
facilities generally.
b. To acquire by purchase, exchange, gift, bequest, subscription or otherwise, and to hold,
own, mortgage, pledge, hypothecate, sell, assign, transfer, exchange or otherwise dispose of or
deal in or with its own corporate securities or stock or other securities, including without
limitations, any shares of stock, bonds, debentures, notes, mortgages, or other obligations, and
any certificates, receipts or other instruments representing rights or interests therein or any
property or assets created or issued by any person, firm, association, or corporation, or any
government or subdivisions, agencies or instrumentalities thereof; to make payment therefor in any
lawful manner or to issue in exchange therefor its own securities or to use its unrestricted and
unreserved earned surplus for the purchase of its own shares, and to exercise as owner or holder of
any securities, any and all rights, powers and privileges in respect thereof.
c. To do each and every thing necessary, suitable or proper for the accomplishment of any of
the purposes or the attainment of any one or more of the subjects herein enumerated, or which may
at any time appear conducive to or expedient for protection or benefit of this corporation, and to
do said acts as fully and to the same extent as natural persons might, or could do, in any part of
the world as principals, agents, partners, trustees or otherwise, either alone or in conjunction
with any other person association or corporation.
d. The foregoing clauses shall be construed both as purposes
and powers and shall not be held to limit or restrict in any manner the
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general powers of the corporation, and the enjoyment and exercise thereof, as conferred by the laws
of the State of Colorado and it is the intention that the purposes and powers specified in each of
the paragraphs of this Article 111 shall be regarded as independent purposes and powers.
ARTICLE IV [ILLEGIBLE]
The aggregate number of shares which this corporation shall have authority to issue is 50,000
shares of no par value stock. All stock of the corporation shall be of the same class, common, and
shall have the same rights and preferences. Fully-paid stock of this corporation shall not be
liable to any further call or assessment.
ARTICLE V AMENDMENT
These Articles of Incorporation may be amended by the affirmative vote of a majority of the
shares entitled to vote on each such amendment.
ARTICLE IV SHAREHOLDER RIGHTS
The authorized and treasury stock of this corporation
may be issued at such time, upon such terms and conditions and for such consideration as the Board
of Directors shall determine. Shareholders shall not have pre-emptive rights to acquire unissued
shares of the stock of this corporation. Cumulative voting shall not be allowed.
ARTICLE VIII INITIAL OFFICE AND AGENT
The address of this corporations initial registered office and the name of its original
registered agent at such address is Londell A. Bunting, 705 13th Street, Greeley, Colorado, 80631.
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ARTICLE IX DIRECTORS
The number of Directors constituting the initial Board of Directors of this corporation is
three. The names and addresses of persons who are to serve as Directors until the first annual
meeting of stockholders, or until their successors are elected and shall qualify are:
Londell
A. Bunting, Route 4, Box 266, Greeley, Colorado 80631
Kenneth Danel, 2131
Bluebell Avenue, Greeley, Colorado 80631
Jim E. Taylor, 2932 West 19th St. Road, Greeley, Colorado 80631
ARTICLE X INCORPORATORS
The
names and address of each Incorporator is:
Londell A. Bunting, Route 4, Box
266, Greeley, Colorado 80631
Kenneth Danel, 2131 Bluebell Avenue, Greeley, Colorado
80631
Jim E. Taylor, 2932 West 19th St. Road, Greeley, Colorado 80631
ARTICLE XI
COMMON DIRECTORS TRANSACTION BETWEEN CORPORATIONS
No contract or other transaction between this corporation and one or more of its Directors or
any other corporation, firm, association or entity in which one or more if its Directors are
directors or officers or are financially interested, shall be either void or voidable because of
such relationship or interest, or because such Director or Directors are present at the meeting of
the Board of Directors, or a committee thereof which authorizes, approves or ratifies such contract
or transaction, oe because his or their votes are counted for such purpose if: (a) the fact of such
relationship or interest id disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies
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the contract or transaction by vote or consent sufficient for the purpose without counting the
votes or consents of such interested Director; or (b) the fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or (c) the contract or transaction is fair and
reasonable to the corporation.
Common or interested Directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies such
contract or transaction.
DATED this 13th day of July, 1977.
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Londell A. Bunting
Londell A. Bunting Incorporator
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Kenneth Danel |
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Kenneth Danel Incorporator |
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Jim E. Taylor |
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Jim E. Taylor Incorporator |
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STATE OF COLORADO
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ss. |
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COUNTY OF WELD
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I,
Sally C. White, a Notary Public, hereby certify that on the
13th day of July, 1977, Londell A. Bunting, Kenneth Danel and Jim E. Taylor
personally appeared before me who, being by me first duly sworn, severally declared that they are
the persons who signed the foregoing document as incorporators and that the statements therein
contained are true.
DATED this 13th day of July, 1977.
My commission expires: 3-13-80
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/s/ [Illegible]
Notary Public
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exv3w348
Exhibit 3.348
AMENDED AND RESTATED BYLAWS
OF
BUNTING TRASH SERVICE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office. A director shall hold office until
the next Annual Meeting and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal from office.
Directors of the Corporation may be removed from the Board of Directors, with or without cause,
subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or
by proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL
PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such inconsistencies
which may then exist.
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exv3w349
Exhibit 3.349
CERTIFICATE OF FORMATION
BUTLER COUNTY LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this instrument is
Butler County Landfill, LLC.
2.
Registered Office; Registered Agent. The address of the registered office of the Company in
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, The
Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 21st day of November, 1997.
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Allied Waste North
America, Inc., |
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a Delaware corporation, |
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Sole Member. |
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By:
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/s/ Steven M. Helm
Steven M. Helm, Vice President/Legal
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exv3w350
EXHIBIT 3.350
OPERATING AGREEMENT OF
BUTLER COUNTY LANDFILL, LLC
This Operating Agreement is executed as of November 21, 1997, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Butler County Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4
Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6
Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be
changed upon the consent of the Member.
1.8
Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2
Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4
Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5
Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1
General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2
Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise disposed of without the consent of the Member.
Any attempted transfer, assignment, encumbrance, hypothecation
or other disposition shall
be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of
the proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2
Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3
Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have
been distributed to the Member, a certificate of cancellation shall be executed and filed by
the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3
Severability. Every provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5
Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of
money and the net fair market value of property (other than money) contributed to the Company
by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each
fiscal year or other period, an amount equal to the Companys taxable income or loss for such
year or period, determined in accordance with Code Section 703(a), reduced by any items of income
or gain subject to special allocation pursuant to this Agreement, and otherwise adjusted by the
Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc., |
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a Delaware corporation |
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By:
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/s/ Henry L. Hirvela
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Its:
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Vice President
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6
EXHIBIT A
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Initial |
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Capital |
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Name and Address of the Member |
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Contribution |
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Allied Waste North America, Inc. |
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$ |
100.00 |
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15880 N. Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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7
exv3w351
Exhibit 3.351
MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH
BUREAU OF COMMERCIAL SERVICES
Date Received (FOR BUREAU USE ONLY)
MAR 21, 2005
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This document is effective on the date
filed, unless a subsequent effective
date within 90 days after received date
is stated in the document. |
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517-663-2525
Ref # 50801
Attn: Cheryl J. Bixby
MICHIGAN RUNNER SERVICE
P.O. Box 266
Eaton Rapids, MI 48827
FILED
MAR 21 2005
Administrator
BUREAU OF COMMERCIAL SERVICES
EFFECTIVE DATE
Document will be returned to the name and address you enter above.
If left blank document will be mailed to the registered office.
ARTICLES OF ORGANIZATION
For use by Domestic Limited Liability Companies
(Please read information and instructions on last
page) B 4283U
Pursuant
to the provisions of Act 23, Public Acts of 1993, the undersigned
execute the following Articles:
ARTICLE I
The name of the limited liability company is: C & C Expanded Sanitary Landfill, LLC
ARTICLE II
The purpose or purposes for which the limited liability company is formed is to angage in
any activity within the purposes for which a limited liability company may be formed under
the Limited Liability Company Act of Michigan.
non-hazardous solid waste management
ARTICLE III
The
duration of the limited liability company if other than perpetual is:
ARTICLE IV
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The street address of the location of the registered office is: |
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30600 Telegraph Road |
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Bingham Farms |
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, Michigan |
48025
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(Street Address) |
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The mailing address of the registered office if different than above: |
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, Michigan |
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(Street Address or P.O. Box) |
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3. |
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The name of the resident agent at the registered office is: The Corporation Company |
ARTICLE
V (Insert any desired additional provision authorized by the Act: attach additional pages if needed.)
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Signed this 18th day of March, 2005 |
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By |
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/s/ Jo Lynn White |
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(Signature(s) of Organizor(s)) |
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Jo Lynn White, Secretary |
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(Type or Print Name(s) of
Organizor(s)) |
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exv3w352
Exhibit 3.352
OPERATING AGREEMENT OF
C & C EXPANDED SANITARY LANDFILL, LLC
This Operating Agreement is executed as of March 21, 2005, by BFI Waste Systems of North
America, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is C & C Expanded Sanitary Landfill, LLC. The name
of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Michigan law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Michigan shall be
The Corporation Company, 30600 Telegraph Road, Birmingham Farms, Michigan, County of Oakland. The
registered office may be changed to any other place within the State of Michigan upon the consent
of the Member. The Company may maintain a registered office in any state within which it does
business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Michigan are The Corporation Company, 30600
Telegraph Road, Birmingham Farms, Michigan. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Michigan, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Michigan. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 450.4801(d) of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section
450.4805(1) of the Act. The Company shall cease to carry on its business, except insofar as may be
necessary for the winding up of its business, but the Companys separate existence shall continue
until a certificate of cancellation has been filed with the Michigan Secretary of State or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefore, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Michigan Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Michigan Law. The laws of the State of Michigan shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Michigan Limited Liability Company Act, as set forth in Michigan Compiled Laws
§ 450.4101 450.5200 et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to
the Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BFI WASTE SYSTEMS OF NORTH AMERICA,
INC., a Delaware corporation
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By: |
/s/ Jo Lynn White
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Jo Lynn White |
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Secretary |
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6
EXHIBIT A
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Initial Capital |
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Name and Address of the Member |
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Contribution |
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BFI Waste Systems of North America, Inc. |
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$ |
100.00 |
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15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260 |
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exv3w353
Exhibit 3.353
EXPECTED
CORP COMMISSION
FILED
MAY 15
[ILLEGIBLE]
ARTICLES OF ORGANIZATION
OF
CACTUS WASTE SYSTEMS LLC
1. |
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Name. The name of the limited liability company is: |
Cactus Waste Systems LLC
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Registered Office. The address of the registered office in Arizona is: c/o CT
Corporation
System, 3225 North Central Avenue, Phoenix, Arizona 85012. |
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Statutory Agent: (In Arizona) The name and address of the statutory agent of the
company
is: |
CT Corporation System
3225 North Central Avenue
Phoenix, Arizona 85012
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Dissolution. The latest date, if any, on which the limited liability company must
dissolve is
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Management of the limited liability company is vested in a manager or
managers. The names and addresses of each person who is a manager and each member
who owns a twenty percent (20%) or greater interest in the capital or profits of
the limited liability company are: |
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Management of the limited liability company is reserved to the
members. The name and addresses of each person who is a member are: |
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5.B. |
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Name:
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Robert H. Steelhammer
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Robert H. Steelhammer, Trustee |
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o member þ manager
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þ o manager |
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Address:
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2100 West Loop South, Suite
1400
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2100 West Loop South, Suite 1400 |
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Houston, Texas 77027
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Houston, Texas 77027 |
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Name:
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Mack Mandell |
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o member [X ] manager |
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Address:
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2100 West Loop South, Suite
1400 |
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Houston, Texas 77027 |
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EXECUTED this 16th day of May, 2001.
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/s/ Robert H. Steelhammer
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/s/ Mack Mandell |
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Robert H. Steelhammer, Manager
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Mack Mandell, Manager |
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Telephone: (713) 960-1001
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Telephone: (713) 960-1001 |
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/s/ Robert H. Steelhammer |
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Robert H. Steelhammer, Trustee for
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Member |
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Telephone:
(713) 960-1001 |
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Acceptance of Appointment by Statutory Agent:
I, CT Corporation System, having bean designated to act as Statutory Agent, hereby consent to act
in that capacity until removed or resignation is submitted in accordance with the Arizona Revised
Statutes.
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CT CORPORATION SYSTEM |
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/S/
Victor Alfano |
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Signature of Staturory Agent
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Victor
Alfano, Assistant Secretary |
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Printed Name of Statutory Agent
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STATE
OF ARIZONA
ACC/FAX
DATE FILED
JUL 22 2003
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF ORGANIZATION
OF
CACTUS WASTE SYSTEMS LLC
FIRST: |
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The name of the limited liability company is Cactus Waste Systems LLC, |
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SECOND: |
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The Articles of Organization were initially filed with the
Arizona Corporation
Commission on May 16, 2001. |
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THIRD: |
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Article 1 of the Articles of Organization is amended in its entirely to read
as follows: The name of the limited liability company is
Cactus Waste Systems, LLC. |
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FOURTH: |
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Article 5. A. of the Articles of Organization, is amended in its entirety to
lead as fallows: |
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5. Management of the limited liability company is vested in a manager or
managers, The Initial managers names and addresses are as follows: |
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David Sutherland-Yoest
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1005 Skyview Drive, Burlington,
Ontario, Canada, L7P 5B1 |
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Larry
D. Henk
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1005 Skyview Drive, Burlington
Ontario, Canada, L7P 5B1 |
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Thomas
E. Durkin, III
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1005 Skyview Drive, Burlington,
Ontario
Canada, L7P 5B1 |
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Mark Cooley
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1005 Skyview Drive, Burlington,
Ontario,
Canada L7P 5B1 |
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FIFTH: Article 5. B. of the Articles of Organization is
deleted in its entirety. |
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SIXTH: A new Article 6 is added to read as follows: |
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The name and address of the sole person who is member who owns a twenty
percent or greater interest in the capital or profits interest of the
limited liability
company is Waste Services, Inc., 1005 Skyview Drive, Burlington, Ontario,
Canada, L7P 5B1. |
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DATED: July 22, 2003. |
/s/ Larry D. Henk
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Larry D. Henk |
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Manager |
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AZ
CORPORATION COMMISSION
FILED
OCT-4-2005
ARTICLES OF AMENDMENT
1. |
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The name of the limited liability company is: |
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CACTUS WASTE SYSTEMS, LLC. |
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2. |
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The Articles of Organization were originally filed with the Arizona Corporation |
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Commission on the 16th day of May, 2001. |
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3. |
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Articles of Amendment were filed with the Arizona Corporation Commission on |
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the 22nd day of July, 2003 |
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4. |
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Attached hereto as Exhibit A is the text of the amendment. |
Dated this
9th day of September , 2005.
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Signature:
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/s/ Ivan R. Cairns |
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Print Name:
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IVAN R. CAIRNS |
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[Check One:
o Member þ Manager] |
AZ
CORPORATION COMMISSION
FILED
APR 12 2007
EXHIBIT A
TEXT OF ARTICLES OF AMENDMENT
TO THE ARTICLES OF ORGANIZATION
OF
CACTUS WASTE SYSTEMS, LLC
FIRST: |
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Article 5 of the Articles of Amendment is amended by replacing the existing
managers names and addresses with the following managers names and addresses: |
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David Sutherland-Yoest
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1122 International Blvd., Suite 601 |
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Burlington, Ontario, L7L 6Z8 |
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Canada |
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Ivan R. Cairns
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1122 International Blvd., Suite 601 |
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Burlington, Ontario, L7L 6Z8 |
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Canada |
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Mark A. Pytosh
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1122 International Blvd., Suite 60 1 |
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Burlington, Ontario, L7L 6Z8 |
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Canada |
SECOND: |
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The address of the sole member contained in Article 6 of the Articles of
Organization is deleted and replaced with the following address: |
1122 International Blvd., Suite 601
Burlington, Ontario, L7L 6Z8
Canada
Attention: General Counsel
ARTICLES OF AMENDMENT
Pursuant to A.R.S. 29-633 (F)
1. |
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The name of the limited liability company is: |
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CACTUS WASTE SYSTEMS, LLC. |
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2. |
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Attached hereto as Exhibit A is the text of the amendment. |
Dated this
11th day
of April 2007.
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Signature:
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/s/ Jo Lynn White |
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Allied Waste North America, Inc., Member |
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Print Name:
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Jo Lynn White, Assistant Secretary of the Member |
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Check One:
þ
Member o Manager |
DO NOT PUBLISH THIS SECTION
The amendment must be executed by a manager if management of the limited
liability company is vested in a manager or by a member if management is reserved
to the members.
Arizona Corporation Commission
Corporations Division
EXHIBIT A
TEXT OF ARTICLES OF AMENDMENT
TO THE ARTICLES OF ORGANIZATION
OF
CACTUS WASTE SYSTEMS, LLC
FIRST: |
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Article 5 of the Articles of Organization is amended in its entirety to read as
follows: |
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5. Management of the limited liability company is reserved to the Member(s). The sole
Members name and address is as follows: |
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Allied Waste North America, Inc.,
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18500 North Allied Way |
a Delaware corporation
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Phoenix, Arizona 85024 |
SECOND: |
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Article 6 is hereby deleted in its entirely. |
Arizona Corporation Commission
Corporations Division
RECEIVED
SEP 22 2008
ARIZONA CORP. COMMISSION
CORPORATIONS DIVISION
AFFIDAVIT OF PUBLICATION
for Corporation Commission
ARIZONA CAPITOL TIMES
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P.O. Box 2260
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Phoenix, AZ 85002 |
Phone: (602) 258-7026
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Fax: (602) 258-2504 |
STATE OF ARIZONA )
County of Maricopa) ss
I, Ginger Lamb as Vice President and Publisher of the Arizona Capitol Times, am authorized as
agent to make this affidavit of publication. Under oath, I state that the following is true and
correct.
The Arizona Capitol Times is a newspaper which is published weekly, is of general circulation and
is in compliance with Arizona Revised Statutes §§ 10-140.34 & 39-201.A & B. The notice will be/has
been published 3 consecutive
times in the newspaper listed above.
DATES OF PUBLICATION:
09/19/2008, 09/26/2008, 10/03/2008
THE NAME OF THE CORPORATION: CACTUS WASTE SYSTEMS, LLC
CORPORATE FILE NUMBER: L-0989402-1
TYPE OF DOCUMENT: ARTICLES OF AMENDMENT
CACTUS WASTE SYSTEMS, LLC
ARTICLES OF AMENDMENT
1. The name of the limited liability company is: CACTUS
WASTE SYSTEMS, LLC.
2. Attached hereto as Exhibit A is the text of the amendment.
EXHIBIT A. TEXT OF ARTICLES OF AMENDMENT TO THE
ARTICLES OF ORGANIZATION OF CACTUS WASTE SYSTEMS, LLC. FIRST: Article 5 of the Articles of Organization is
amended in its entirely to read as follows: 5. Management of
the limited liability company is reserved to the Member(s). The
sole Members name and address is as follows: Allied Waste
North America, Inc., a Delaware corporation, 18500 North Allied
Way, Phoenix, Arizona 85024. SECOND: Article 6 is hereby
deleted in its entirety.
Dated this 11th day of April, 2007. Allied Waste North America, inc., Member, /s/ Jo Lynn White,
Assistant Secretary of the Member [Check One:
þ Member
o
Manager]. 9/19, 9/26, 10/3, 2008 editions
Arizona Capital Times
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AUTHORIZED |
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SIGNATURE:
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/s/ [Illegible] |
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SUBSCRIBED AND SWORN TO BEFORE ME
ON
THE 19th day of September, 2008
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NOTARY SIGNATURE:
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Laurinda R. Cook |
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exv3w354
Exhibit 3.354
AMENDED AND RESTATED
OPERATING AGREEMENT
OF CACTUS WASTE SYSTEMS, LLC
This Operating Agreement (the Agreement) of CACTUS WASTE SYSTEMS, LLC (the Company) is
executed as of March 31, 2007, by ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company. This Agreement shall supersede and replace the
Companys Restated Operating Agreement of Cactus Waste
Systems, LLC, dated July 31, 2003, in its
entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section
7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3
Name. The name of the Company is Cactus Waste Systems,
LLC. All business of the
Company shall be conducted in the Company name. The Company shall hold its property in the name of
the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Arizona law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Arizona shall be
c/o C T Corporation System, 2394 East Camelback Road, Phoenix, Arizona, County of Maricopa. The
registered office may be changed to any other place within the State of Arizona upon the consent of
the Member. The Company may maintain a registered office in any state within which it does business
at any location approved by the Member.
1.6 Statutory Agent for Service of Process. The name and address of the statutory
agent for service of legal process on the Company in Arizona are C T Corporation System, 2394 East
Camelback Road, Phoenix, Arizona. The Companys agent for service of legal process may be changed
upon the consent of the Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles of
Organization deemed necessary to reflect amendments to this Agreement that the Member adopts in
accordance with the terms. Upon the approval of any amendments, by the Member in accordance with
this Agreement, the Member or a designee of the Member shall be authorized to execute and file such
instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member (or its predecessor in interest) has
contributed to the Company cash or other assets. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him by
this Agreement or by the Member.
2
4.2.2 Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act, the Vice President or the Vice Presidents, if there
are more than one, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, and shall render to the
President, from time to time, when the Member so requires, an account of all his transactions as
Treasurer and of the financial condition of the Company. If required by the Member, the Treasurer
shall give the Company a bond in such sum and with such surety or sureties as shall be satisfactory
to the Member for the faithful performance of the duties of his office and for the restoration to
the Company, in case of his death, resignation, retirement, or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in his possession or under his
control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
3
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 18-802 of the Act.
6.2 Winding UP.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of termination have been filed with
the Arizona Corporation Commission or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
4
(b) Liquidation and Distribution of Assets. The Member (or its authorized
successor in interest) shall be responsible for overseeing the winding up and liquidation of the
Company and shall take full account of the Companys liabilities and assets upon dissolution. Any
assets not required to discharge any liabilities of the Company shall be distributed to the Member.
Upon the completion of the winding up, liquidation and distribution of the assets, the Company
shall be deemed terminated. The Company shall comply with any applicable requirements of the Act
pertaining to the winding up of the affairs of the Company and the final distribution of its
assets.
6.3 Articles of Termination. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, the Member shall
execute and file articles of termination with the Arizona Corporation Commission.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement.
7.4
Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Arizona shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Arizona Limited Liability Company Act, Title 29, Chapter 4, of Arizona
Revised Statures, as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time.
Articles of Organization has the meaning given that term in Section 1.7.
5
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member (or its predecessor).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended to
or shall be for the benefit of any Person not a party to this Agreement, and no such other Person
shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA,
INC., a Delaware corporation,
its Sole Member
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By: |
/s/
Timothy R. Donovan
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Name: |
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Title: |
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6
EXHIBIT A
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Percentage |
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Name and Address of Member |
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Interest |
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Allied Waste North America, Inc. |
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100 |
% |
18500 North Allied Way
Phoenix, Arizona 85054 |
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7
exv3w355
Exhibit 3.355
STATE OF MARYLAND
ARTICLE OF INCORPORATION
THIS IS TO CERTIFY:
FIRST:
That we James R. Strohecker, whose address is 1280 [ILLEGIBLE] Road, St.
Leonard, NO 20685, Gregory G. Strott, whose address is 755 Seone Drive, Annapolis, NO 21401, and
Robert L. Snufelt, whose address is 23-21 Bay City, Stevensville, NO 21666, being at least
twenty-one years of age, and with the intention of forming a corporation under and by
virtue of the General Laws of the State of Maryland, do hereby sign
and acknowledge these Articles
of Incorporation of GLJ EQUIPMENT COMPANY, INCORPORATED.
SECOND: The Name of the Corporation (which is hereinafter called the Corporation) is
GLJ EQUIPMENT COMPANY, INCORPORATED.
THIRD: The
purpose for which the Corporation is formed and the business or objects to be
carried on and promoted by it are as follows:
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(1) |
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To purchase, sell, rent or lease any and all types of
Real Estate, |
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(2) |
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To manufacture, purchase and deal in at wholesale or
retail, any and all kinds and types of material, supplies and
equipment for any and all kinds and types of construction
work, whether building or otherwise. |
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(3) |
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To improve, manage, develop, sell, assign, transfer, lease,
mortgage, pledge or otherwise dispose of or turn to account,
or deal with all or any part of the property of the Corporation. |
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(4) |
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To
build, erect, construct, alter, reconstruct and improve any
and all buildings and structures upon any lands or water,
whatsoever. |
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(5) |
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To acquire, build, charter, buy, lease, rent, operate and use
vehicles of any kind or character. |
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(6) |
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To apply for, obtain, register, purchase, lease or
otherwise acquire or own any concessions, rights, options,
patents, patent rights, priviledges, inventions, processes,
copyrights, trademarks, trade names, or any right, option or
contract in relation thereto to develop, maintain, lease
sell, transfer, license, dispose of, use, operate or
manufacture under or in any otherwise deal in and with the same; and perform,
carry out and fulfill the terms and conditions of any option or contract in relation thereto. |
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(7) |
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To acquire by purchase, subscription or otherwise, and to
hold, sell, own, negotiate, deal in, exchange, transfer,
mortgage, pledge or otherwise dispose of any shares of the
capital stock, scrip or any voting trust certificates in
respect of the capital stock, or any bonds, mortgages,
securities, or their evidence of indebtedness issued or
grasted by any other corporation, joint stock company or
association public or private, or of the Government of the
united States, or any State, territory, municipality or
other political subdivision, and to issue in exchange therefor, in the same manner provided
by law, shares of the capital stock, bonds, or other obligations of the Corporation; and while
the holder or owner of any such shares of capital stock, scrip, voting trust certificates, bonds,
mortgage or other securities or evidence indebtedness, to possess and exercise in respect thereof
any and all rights, power, and priviledges of ownership, including the right to vote thereon. |
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(8) |
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To acquire by purchase, lease or otherwise to own, use and
operate factories, shops, manufacturing plants, including lands, buildings, machinery,
equipment and appliances, stores and other properties within and without |
-2-
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the State of Maryland, which may be useful to accomplish any and
all of the purposes of carrying on any of the business of the character
hereinbefore referred to. |
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(9) |
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To acquire by purchase, lease, exchange or otherwise real and personal property
without limit in the State of Maryland or other states or other territories of the
united States and to hold, use, pledge, mortgage, sell or otherwise dispose of
any property, real and personal, owned by it. |
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(10) |
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To enter into, make and perform contracts without limit as to
the character or amount, execute, issue and endorse drafts,
bills of exchange and negotiable instruments of all kinds, as permitted by law. |
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(11) |
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To borrow money for any of the purposes of this Corporation,
and to issue bonds, debentures, debenture stocks, notes or
other obligations, and to secure the same by pledge or mortgage of the whole or
any part of the property of this Corporation whether real or personal or to issue
bonds. |
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(12) |
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To purchase, hold and reissue the shares of its capital stock
in such manner as the Board of Directors any from time to
time determine. |
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(13) |
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To have one or more offices and places of business and to carry on all or any part of
its operations or business, without restrictions or limit as to amount of places in any
of the cities, districts or territories of the United States,
subject to the laws of such state, district or territory
[ILLEGIBLE]. |
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(14) |
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To engage in the general real [ILLEGIBLE] business manage properties and engage in
appraisals of real estate for other than said Corporation. |
-3-
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(15) |
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To purchase, take, receive, subscribe for, or otherwise acquire, own,
hold, vote, use, employ, sell, mortgage, loan, pledge, or otherwise dispose of, and
otherwise use and deal in and with, shares of other interests in, or obligations
of, other corporations of this State, of foreign corporations, and of associations,
partnerships, and individuals. |
The aforegoing objects and purposes shall, except when otherwise expressed, be in no way
limited or restricted by reference to, or in reference form the terms of any other clause of
this or any other article of this certificate of incorporation or of any amendment thereto,
and shall each be regarded as independent, and construed as powers as well as objects and
purposes. The corporation shall be authorized to exercise and enjoy all the powers, rights and
privileges granted to or conferred upon corporations of a similar character by the General
Laws of the State of Maryland now or hereafter in force, and the
[ILLEGIBLE] of the foregoing
powers shall not be deemed to exclude any powers, rights, or privileges so granted or
conferred.
FOURTH: The post office address of the principal office of the Corporation in this state is
755 Sonne Drive, Annapolis, Maryland 21401. The Resident Agent is an individual actually
residing in this state and is a citizen of this state. Said resident agent for the Corporation
is Gregory G. Street, whose post office address is 755 Sonne Drive, Annapolis, Maryland 21401.
FIFTH: The
number of directors of the Corporation shall be three (3); and the names of the
Directors of the Corporation, who shall act until the first annual meeting of the Directors,
or until their successors are duly chosen and qualify are: James R. Strohecker, Gregory G.
Strott and Robert L. Shufelt.
SIXTH: The total number of shares of stock which the Corporation has authorized to issue is
Five Thousand Shares without per value, all of one class.
SEVENTH: The following provision is hereby adopted for the purpose of defining. Limiting and
regulating the powers of the Corporation, of the Directors and the Stockholders:
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The Board of Directors of the Corporation is hereby on-powered to authorize the
issuance, from time to time, of shares of its stock of one class, whether now or
hereafter authorized, and securities convertible into shares of its stock of one class,
whether now or hereafter authorized, for such consideration as the said Board of Director
may does advisable, subject to such limitation and restrictions, if any, as may be set
forth in the bylaws of the Corporation. |
EIGHTH: The duration of the Corporation shall be perpetual.
In WITNESS HEREOF, I have signed those Articles of Incorporation on the 4th day of
October, 1990.
WITNESS:
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/s/ James R. Strohecker
JAMES R. STROHECKER
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/s/ Gregory G. Strott
GREGORY G. STROTT
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/s/ Robert L. Shufelt
ROBERT L. SHUFELT
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STATE OF
MARYLAND, COUNTY OF PRINCE GEORGE, to wit:
I HEREBY CERTIFY, that on this 10 day of October therefore no, a Notary Public of the State of
Maryland, in and for the aforesaid County personality appeared JAMES R. STROHECKER, GREGORY G.
STROTT and ROBERT L. SHUFELT, the acknowledged the signing of the foregoing Articles of
Incorporation to be their act.
AS
WITNESS my hand and notarial seal.
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/s/ [ILLEGIBLE]
NOTARY PUBLIC
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My
Commission Expires My Commission Expires March 1, 1994
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exv3w356
Exhibit 3.356
AMENDED AND RESTATED BYLAWS
OF
CALVERT TRASH SYSTEMS INCORPORATED
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at such
location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE
II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or
for any other purpose shall be held at such time and place, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meetings the stockholders shall elect Directors in accordance with
Section 1 of Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten (10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting.
Section 3.
Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, often percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of Incorporation, as
the same may be amended from time to time, the holders of a majority of the capital stock issued
and outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty (30) days (or any shorter
period required by law), or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or these
Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted
on or after eleven (11) months from its date, unless such proxy provides for and, applicable state
law allows for, a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days (or
any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required by Section 6 of
this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 8, Election Inspectors. Prior to any meeting of the stockholders, the Board of
Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders shall be
called to order and thereafter chaired by the Chairman of the Board of Directors if there is one;
or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if
the Chairman of the Board and the President are unavailable, such other officer of the Corporation
or such stockholder as may be appointed by the Board of Directors. The Corporations Secretary
shall act as secretary of each meeting of the stockholders; in the Secretarys absence, the
chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary
for the meeting. Absent a showing of bad faith on his part, and subject to any state law
restrictions or requirements, the chairman of a meeting shall, among other things, have absolute
authority to fix the period of time allowed for the registration of stockholders and the filing of
proxies, to determine the order of business to be conducted at such meeting and to establish
reasonable rules for expediting the business of the meeting (including any informal, or question
and answer portions thereof).
Section 10.
Action by Written Consent. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who shall serve one-year terms,
consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office. A director shall hold office until
the next Annual Meeting and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal from office.
Directors of the Corporation may be removed from the Board of Directors, with or without cause,
subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be
filled by a majority of the directors then in office, even if less than a quorum, or by a sole
remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by
these Bylaws, as the same may be amended from time to time, directed or required to be exercised or
done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular
and special, either outside of or within the state of incorporation. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there is one, the President or any two (2) directors. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile or
telegram, not less than twenty-four (24) hours before the date of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or
these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their reasonable
out-of-pocket expenses incurred in connection with their attendance at Board meetings, and shall
receive such other compensation as maybe determined by the Board of Directors from time to time by
majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law, no
contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization
in which one or more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
officer is present at
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or participates in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted for such purpose if
(i) the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee, in good faith, authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors
and shall, at a minimum, include a President and a Secretary. The Board of Directors, in its
discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting held after
each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors. The salaries and any bonuses or other compensation of all officers of the Corporation
shall be fixed by the Board of Directors. No officer shall be prevented from receiving a salary by
reason of the fact that such officer is also a director of the
Corporation.
Section 3.
Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the President or any Vice
President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of Directors,
have general supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6.
Vice Presidents. At the request of the President or in his absence or in the event
of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the
Executive Vice President, or if there is no Executive Vice President, the Vice President or the
Vice Presidents if there are more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other officer of the Corporation the power
to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by the President or any Vice
President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than
the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or
destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed
by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney lawfully constituted in writing and upon
the surrender of the certificate therefor, which shall be canceled before a new certificate shall
be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action (unless a greater or lesser period is required
by applicable state law). A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
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ARTICLE
VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as the same may be
amended from time to time, if any,
may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors
may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the Corporation,
which shall have inscribed thereon the name of the Corporation, and the state and year of its
organization. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and include
all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VII, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or another enterprise,
or on information supplied to him by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term another enterprise as used in this
Section 4 of this Article VIII shall mean any other corporation or any partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific
case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be
a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this
Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
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Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by or granted pursuant to this
Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification of the persons
specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by
law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or Section 2 of
this Article VIII but whom the Corporation
has the power or obligation to indemnify under the provisions of the applicable state law of the
state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 10.
Limitation on Indemnification. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations Certificate
of Incorporation shall be deemed to refer to its articles or certificate of incorporation and all
and any amendments thereto as of any given time on file with the applicable state office of agency
(or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall in all
respects be considered senior and superior to these bylaws, with any inconsistency to be resolved
in favor of the Certificate or applicable state law, as the case may be, and the Bylaws shall be
deemed to be amended automatically from time to time to eliminate any such inconsistencies which
may then exist.
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exv3w357
Exhibit 3.357
CERTIFICATE OF LIMITED PARTNERSHIP
OF
CAMELOT LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The name of the limited partnership is Camelot Landfill TX, LP
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Camelot Landfill TX, LP as of April 24, 1998.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, |
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General Parmer |
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By
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/s/ Donald W. Slager
Donald W. Slager, President
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exv3w358
Exhibit 3.358
AGREEMENT OF LIMITED PARTNERSHIP OF
CAMELOT LANDFILL TX, LP
This
Agreement of Limited Partnership is entered into as of April 28, 1998, by and
between Allied Waste Landfill Holdings, Inc., a Delaware corporation, as the General Partner, and
Allied Waste Systems Holdings, Inc. as the Limited Partner, on the following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings
set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement.
1.3 Name. The name of the Partnership is Camelot Landfill TX, LP. The General Partner may
change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware by the General Partner, upon
written notice to the Limited Partner. The Partnership may maintain a registered office in any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Partnership in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service of legal
process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner files a
Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited Partnership with
the Delaware Secretary of State in accordance with the provisions of the Act. The Partners shall
take any and all other actions, and shall execute and file such amendments to this Agreement or to
the certificate of limited partnership as are reasonably necessary to perfect and maintain the
status of the Partnership as a limited partnership under the laws of the State of Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the cash or
other assets set forth in Exhibit A to this Agreement. In conjunction with such contributions, each
Partner shall receive a credit to its Capital Account equal to its Capital Contribution and a
Percentage Interest in the Partnership as set forth on Exhibit A. No Partner shall be obligated to
make additional Capital Contributions to the Partnership, except upon the unanimous written consent
of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner shall
withdraw any Capital Contributions or any money or other property from the Partnership without the
written consent of the other Partners. Under circumstances requiring a return of any Capital
Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts, liabilities,
contracts or any other obligations of the Partnership. Except as agreed upon by the Partners, and
except as otherwise provided by the Act or by any other applicable state law, no Partner shall be
required to make any other Capital Contributions or to loan any funds to the Partnership. No
Partner shall have any personal liability for the repayment of its Capital Contributions or loans
of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed
to benefit any creditor of the Partnership, and no creditor of the Partnership will be entitled to
require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
2
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make loans to the
Partnership, which shall bear interest and be repaid on such reasonable terms and conditions as may
be approved by the General Partner. No Partner shall be required to make a loan to the Partnership
unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash Flow, if any,
shall be distributed to the Partners in proportion to their Percentage Interests at such times as
may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections 704(b),
704(c) or Treasury Regulations promulgated thereunder, all Profits, Losses and items thereof for
each fiscal year of the Partnership shall be allocated to the Partners in proportion to their
Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in accordance
with the Regulations under uniform policies approved by the General Partner, upon the advice of the
Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and exclusive
right to manage the affairs of the Partnership and shall have all of the rights and powers which
may be possessed by general partners under the Act. If two or more Persons are serving as General
Partners, decisions regarding the management of the Partnership and its business and affairs shall
be made by the consent of a majority in number of the General Partners then serving. The rights and
powers which the General Partner may exercise include, but are not limited to, the following:
(a) invest
and reinvest Partnership funds for the purposes set forth in Section 1.4, in any
manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
3
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may rely upon a
certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts which constitute a condition precedent
to acts by the General Partner or which are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as officers
of the Partnership. The officers shall have the authority to act for and bind the Partnership to
the extent of the authority granted to them by the General Partner on behalf of the Partnership.
The officers of the Partnership may include a president, vice presidents, a secretary, a treasurer,
and such other officers as the General Partner deems appropriate. The
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officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the Partners
of any transaction, notice, event or proposal directly relating to the management and operation of
the Partnership or to its assets which does or could materially affect, either adversely or
favorably, the Partnership, its business or its assets.
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend, indemnify and
save harmless the Partners and their officers and directors (the Indemnified Parties) from and
against all losses, claims, costs, liabilities and damages incurred by them by reason of any act
performed or omitted to be performed by them in connection with the business of the Partnership,
including attorneys fees incurred by them in connection with the defense of any action based on
any such act or omission; provided, however, no Indemnified Party shall be indemnified from any
liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all accounts,
books and other relevant Partnership documents. Each Partner shall have the right, during ordinary
business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership as the
tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature which do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer which does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
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8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means, the
interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner in
the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its entire
interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. In the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General Partner
pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no General
Partner, any Limited Partner may nominate one or more Persons for election as General Partner,
which Person or Persons shall have the right and the power to continue the Partnership and its
business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
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(a) The sale of all or substantially all of the Partnerships assets and the collection
of the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases to be a
General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be General
Partners pursuant to Section 9.1 hereof and no Person named as a successor General Partner in
Section 9.3 hereof is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnership property, and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and items
thereof of the Partnership for the taxable year in which the liquidation of the Partnership occurs
shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners as
closely as possible to distributions of such liquidation proceeds pursuant to the priorities set
forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand or communication required or permitted to be given
by any provision of this Agreement shall be in writing and shall be delivered
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personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership, to the Partnership at the address set forth in Section 1.6 hereof, or to such other
address as the Partnership may from time to time specify by notice to the Partners in accordance
with this Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section 11.1
Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of the Partners and
their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Partners interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 8 hereof.
11.3 Construction. Every covenant, term and provision of this Agreement shall be construed
simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer
to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right that
such Partner may have to maintain any action for partition with respect to any of the Partnerships
property.
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11.10 Counterpart Execution. This Agreement may be executed in any number of counterparts with
the same effect as if all of the Partners had signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement, all
actions which the General Partner may take and all determinations which the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not ceased
to be a General Partner pursuant to the terms of this Agreement. General Partners means all such
Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a Limited
Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of this
Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
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12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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By: |
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/s/ D. W. Slager |
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Its:
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President
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Allied Waste System Holding, Inc, |
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a Delaware corporation, |
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By: |
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/s/ Steven M. Heim |
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Its:
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners: |
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Contribution |
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Interest |
General Partner: |
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$ |
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1% |
Allied Waste Landfill Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Limited Partner: |
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$ |
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99% |
Allied Waste Systems Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w359
Exhibit 3.359
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Submit the original And one true copy Registry Number:
[ILLEGIBLE] |
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SECRETARY OF STATE
Corporation Division
Business Registry
158 12th Street NE
Salem, OR 97310-0210
(503) 378-4166 |
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THIS SPACE FOR OFFICE USE ONLY |
501759-84 |
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FILED
FEB 20 1996
SECRETARY OF STATE
ARTICLES OF INCORPORATION
Business Corporation
PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK
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ARTICLE 1: |
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Name of corporation: Capitol Recycling and Disposal, Inc. |
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Note: The name must
contain the word Corporation, Company, Incorporated
or Limited, or an abbreviation of one of such words. |
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ARTICLE 2: |
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Number of shares the corporation will have authority to issue: 100 |
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ARTICLE 3: |
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Name of the initial registered agent: Gary Barton |
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Address of initial
registered office (must be a street
address in Oregon which is identical to the
registered agents business office): |
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525 NW 2nd Street |
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Corvallis |
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Oregon |
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97330 |
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Mailing address of
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PO Box 807 |
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Corvallis |
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Oregon |
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97339 |
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ARTICLE 4: |
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Address where the
Division may mail notices: (Attn:) Gary Barton |
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PO Box 807 |
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Corvallis |
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OR |
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97339 |
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ARTICLE 5: |
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Name and address of each incorporator: |
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Scott A. Fewel |
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456 SW Monroe # 101 |
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Corvallis, OR 97330 |
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ARTICLES OF INCORPORATION
BUSINESS CORPORATION
PAGE 2 501759-84
Name of the corporation: Capitol Recycling and Disposal, Inc.
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ARTICLE 6: |
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Name and address of
each director (optional): |
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ARTICLE 7: |
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Other optional provisions: |
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Execution: |
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/s/ Scott A. Fewel |
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Scott A. Fewel |
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Incorporator |
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Signature |
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Title |
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Incorporator |
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Person to contact about this filing: |
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Scott A. Fewel |
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541-752-5154 |
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Name |
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Daytime phone number |
Make checks payable to the Corporation Division. Submit the completed form and fee to: Corporation
Division, Business Registry, 158 12th Street NE Salem, Oregon 97310-0210.
FILED
AUG 23 1999
SECRETARY OF STATE
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION OF
CAPITOL RECYCLING AND DISPOSAL, INC.
1. The name of the corporation is Capitol Recycling and Disposal, Inc.
2. The amendments adopted to the articles of incorporation are as follows, to add the
following articles to the articles of incorporation:
ARTICLE 7. ELIMINATION OF LIABILITY
A. To the fullest extent permitted by law, no director of the corporation shall be
personally liable to the corporation or its shareholders for monetary damages for
conduct as a director, except that this provision shall not eliminate or limit the
liability of a director for any of the following:
1. Any act or omission occurring before the date this provision
becomes effective;
2. Any breach of the directors duty of loyalty to the corporation or
its shareholders;
3. Acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
4. Any distribution to shareholders that is unlawful under the Oregon
Business Corporation Act or successor statute; or
5. Any transaction from which the director derived an improper personal
benefit.
B. Without limiting the generality of the foregoing, if the provisions of applicable
law are further amended at any time, and from time to time, to authorize corporate action
further eliminating the personal liability of directors and officers of the corporation,
the liability of directors and officers of the corporation shall be eliminated or limited
to the fullest extent permitted by applicable law, as so amended.
C. No amendment to or repeal of this Article 7, or adoption of any provision of these
Articles of Incorporation inconsistent with this Article 7, or a change in the law, shall
adversely affect any elimination or limitation of liability, or other right or protection,
that is based upon this Article 7 and pertains to any
act, conduct, omission, or circumstance that occurred or existed before the amendment,
repeal, adoption, or change. No change in the law shall reduce or eliminate the rights
and protections set forth in this Article 7 unless the change in law specifically
requires the reduction or elimination. No amendment to or repeal of this Article 7 shall
apply to or have any effect on the liability or alleged liability of any director or
officer of the corporation for or with respect to any acts or omissions before the
amendment or repeal.
ARTICLE 8. INDEMNIFICATION
D. The corporation shall indemnify, to the fullest extent permitted by law, any
person who is made or threatened to be made a party to, witness in, or otherwise involved
in, any action, suit, or proceeding, whether civil, criminal, administrative,
investigative, or otherwise (including any action, suit, or proceeding by or in the right
of the corporation) by reason of the fact that the person is or was a director or officer
of the corporation or any of its subsidiaries, or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any employee benefit plan
of the corporation or any of its subsidiaries, or served or serves at the request of the
corporation as a director or officer, or as a fiduciary of an employee benefit plan, of
another corporation, partnership, joint venture, trust, or other enterprise. Any
indemnification provided pursuant to this Article 8 shall not be exclusive of any rights to
which the person indemnified may otherwise be entitled under any provision of these
Articles of Incorporation, the Bylaws, agreement, statute, policy of insurance, or
otherwise.
E. Indemnification provided under this Article 8 shall continue to cover any
director or officer after the person ceases to serve in that capacity and shall enure to
the benefit of the persons heirs, personal representatives, and administrators.
F. The right to indemnification conferred by this Article 8 shall be considered a
contract right between the corporation and the person entitled to indemnity under this
Article 8.
G. In addition to any rights set forth above in this Article 8, the corporation
shall advance all reasonable expenses incurred by a director or officer who on behalf of
the corporation is party to a proceeding, in advance of the proceeding to the fullest
extent required or authorized under the law.
3. The date each amendment was adopted is 8/18, 1999.
Page 2 ARTICLES OF AMENDMENT
4. The amendments were approved by the shareholders. One hundred shares of the corporation are
outstanding, 100 votes are entitled to be cast on the amendments, 100 votes were cast for the
amendments, and no votes were cast against the amendments.
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Capitol Recycling and Disposal, Inc.
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By: |
/s/ Gary A. Barton
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Gary A. Barton, Vice President |
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Page 3 ARTICLES OF AMENDMENT
exv3w360
Exhibit 3.360
AMENDED AND RESTATED BYLAWS
OF
CAPITOL RECYLING AND DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1.
Registered Office. The registered office of the Corporation shall be at such
location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.
Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2.
Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meetings the stockholders shall elect Directors in accordance with
Section 1 of Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten (10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting.
Section 3.
Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, often percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place,
given not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4.
Quorum. Except as otherwise provided by law or by the Articles of Incorporation, as
the same may be amended from time to time, the holders of a majority of the capital stock issued
and outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty (30) days (or any shorter
period required by law), or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
Section 5.
Voting. Unless otherwise required by law, the Articles of Incorporation or these
Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted
on or after eleven (11) months from its date, unless such proxy provides for and, applicable state
law allows for, a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6.
List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days (or
any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the
2
meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7.
Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required by Section 6 of
this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 8.
Election Inspectors. Prior to any meeting of the stockholders, the Board of
Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9.
Organization and Conduct of Meetings. Each meeting of the stockholders shall be
called to order and thereafter chaired by the Chairman of the Board of Directors if there is one;
or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if
the Chairman of the Board and the President are unavailable, such other officer of the Corporation
or such stockholder as may be appointed by the Board of Directors. The Corporations Secretary
shall act as secretary of each meeting of the stockholders; in the Secretarys absence, the
chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary
for the meeting. Absent a showing of bad faith on his part, and subject to any state law
restrictions or requirements, the chairman of a meeting shall, among other things, have absolute
authority to fix the period of time allowed for the registration of stockholders and the filing of
proxies, to determine the order of business to be conducted at such meeting and to establish
reasonable rules for expediting the business of the meeting (including any informal, or question
and answer portions thereof).
Section 10.
Action by Written Consent. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1.
Number and Election of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who shall serve one-year terms,
consisting of not less than one (1) nor more than nine (9) directors, the exact number of directors
to be determined from time to time by resolution adopted by the affirmative vote of a majority of
the directors then in office. A director shall hold office until the next Annual Meeting and until
his successor shall be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Directors of the Corporation may be removed
from the Board of Directors, with or without cause, subject only to limitation provided by law.
Section 2.
Vacancies. Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be
filled by a majority of the directors then in office, even if less than a quorum, or by a sole
remaining director.
Section 3.
Duties and Powers. The business of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by
these Bylaws, as the same may be amended from time to time, directed or required to be exercised or
done by the stockholders.
Section 4.
Meetings. The Board of Directors of the Corporation may hold meetings, both regular
and special, either outside of or within the state of incorporation. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there is one, the President or any two (2) directors. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile or
telegram, not less than twenty-four (24) hours before the date of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5.
Quorum. Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any
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meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6.
Actions of Board. Unless otherwise provided by the Certificate of Incorporation or
these Bylaws, as the same may be amended from time to time, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may be taken without a
meeting, if all the members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 7.
Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8.
Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9.
Compensation. Directors shall be reimbursed by the Corporation
for
5
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10.
Interested Directors. Unless otherwise permitted in applicable state law, no
contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization
in which one or more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or the committee, and
the Board of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or
the stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1.
General. The officers of the Corporation shall be chosen by the Board of Directors
and shall, at a minimum, include a President and a Secretary. The Board of Directors, in its
discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2.
Election and Compensation. The Board of Directors, at its first meeting held after
each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties
6
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3.
Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the President or any Vice
President, and any such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4.
Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5.
President. The President shall, subject to the control of the Board of Directors,
have general supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6.
Vice Presidents. At the request of the President or in his absence or
7
in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7.
Secretary. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or books to be kept
for that purpose; the Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board of Directors or President,
under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the Board of Directors,
and if there is no Assistant Secretary, then either the Board of Directors or the President may
choose another officer to cause such notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors
8
for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9.
Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10.
Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors,
the Chairman of the Board of Directors, the President, any Vice President, if there are any
appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his disability
or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board
of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to the Corporation.
Section 11.
Other Officers. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other officer of the Corporation the power
to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1.
Form of Certificates. Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by the President or any Vice
President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
9
Section 2.
Signatures. Where a certificate is countersigned by (i) a transfer agent other than
the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3.
Lost Certificates. The President or Secretary may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4.
Transfers. Stock of the Corporation shall be transferable in the manner prescribed
by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney lawfully constituted in writing and upon
the surrender of the certificate therefor, which shall be canceled before a new certificate shall
be issued.
Section 5.
Record Date. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action (unless a greater or lesser period is required
by applicable state law). A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6.
Beneficial Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim to or
10
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1.
Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2.
Waivers of Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1.
Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as the same may be amended from time to time, if
any, may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2.
Disbursements. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
11
Section 3.
Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 4.
Corporate Seal. The Board of Directors may provide for a seal of the Corporation,
which shall have inscribed thereon the name of the Corporation, and the state and year of its
organization. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 5.
Gender. All words used in any gender in these Bylaws shall extend to and include
all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person (a) did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, (b) with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
12
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3.
Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4.
Good Faith Defined. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or another enterprise,
or on information supplied to him by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term another enterprise as used in this
Section 4 of this Article VIII shall mean any other corporation or any partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
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Section 5.
Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6.
Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
Section 7.
Nonexclusivitv of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by or granted pursuant to this Article VIII shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
applicable state law of the state of incorporation, or otherwise.
Section 8.
Insurance. The Corporation may purchase and maintain insurance
14
on behalf of any person who is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the power
or the obligation to indemnify him against such liability under the provisions of this Article
VIII.
Section 9.
Survival of Indemnification and Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 10.
Limitation on Indemnification. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
Section 11.
Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1.
Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2.
Reference to Articles. Any reference herein made to the Corporations Certificate
of Incorporation shall be deemed to refer to its articles or certificate of incorporation and all
and any amendments thereto as of any given time on file with the applicable state office of agency
(or any successor thereto).
Section 3.
Seniority. The Certificate of Incorporation and applicable state law shall in all
respects be considered senior and superior to these bylaws, with any inconsistency to be resolved
in favor of the Certificate or applicable state law, as the case may be, and the Bylaws shall be
deemed to be amended automatically from time to time to eliminate any such inconsistencies which
may then exist.
16
exv3w361
Exhibit
3.361
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Prescribed by J. Kenneth Blackwell |
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Expedite this Form: (Select One) |
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Ohio Secretary of State |
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Mail Form to one of the Following: |
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Central Ohio: (614) 466-3910
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PO Box 1390 |
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Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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o Yes |
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Columbus, OH 43216 |
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*** Requires an additional fee of $100 *** |
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PO Box 670 |
www.state.oh.us/sos
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o No |
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e-mail: busserv@sos.state.oh.us
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Columbus, OH 43216 |
ORGANIZATION / REGISTRATION OF
LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
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(1) þ |
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Articles of Organization for |
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Application for Registration of |
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Domestic Limited Liability Company |
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Foreign Limited Liability Company |
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(115-LCA)
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(106-LFA) |
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ORC 1705
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ORC 1705 |
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(Date of Formation)
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(State) |
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Complete the general information in this section for the box checked above.
Name Carbon Limestone Landfill, LLC
o Check here if additional provisions are attached
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* |
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If box (1) is checked, name must include one of the following endings: limited liability
company, limited, Ltd, L.t.d., LLC, L.L.C. |
Complete the information in this section if box (1) is checked.
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Effective Date (Optional)
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Date specified can be no more than 90 days after date of filing. If a date is specified,
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(mm/dd/yyyy)
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the date must be a date on or
after the date of filing. |
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This limited liability company shall exist for
(Optional)
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(Period
of existence)
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The address to which interested persons may direct requests for copies of
any operating agreement and any bylaws of this limited liability company is
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(Name) |
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Last Revised: May 2002
Page 1 of 5
Complete the information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned authorized member, manager or representative of
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Carbon Limestone Landfill, LLC
(name of limited liability company)
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hereby appoint the following to be statutory agent upon whom any process, notice or demand
required or permitted by statute to be served upon the limited liability company may be served. The
name and address of the agent is:
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CT Corporation System |
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1300 East 9th Street |
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Cleveland
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Ohio
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Must be authenticated by an
authorized representative
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/s/ Jo Lynn White
Authorized
Representative
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December 15, 2004
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Jo Lynn White |
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Authorized
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ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for
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(name
of limited liability company)
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hereby acknowledges and accepts the appointment of agent for said limited
liability Company.
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CT Corporation System |
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By:
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signature)
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PLEASE SIGN PAGE (3) AND SUBMIT COMPLETED DOCUMENT
Last Revised: May 2002
Page 2 of 5
Complete
the information in this section if box (2) is checked.
The address to which interested persons may direct requests for copies of any operating agreement
and any bylaws of this limited liability company is
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Jo Lynn White |
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(Name) |
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15880 N Greenway-Hayden Loop, Suite 100 |
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Scottsdale
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Arizona
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85260
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The name under which the foreign limited liability company desires to transact business in Ohio
is
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Carbon
Limestone Landfill, LLC
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The limited liability company hereby appoints the following as its agent upon whom process against
the limited liability company may be served in the state of Ohio. The name and complete address of
the agent is
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CT Corporation System |
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1300 East 9th Street |
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Cleveland
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Ohio
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44114
(Zip Code)
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The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the OHIO
SECRETARY OF STATE if:
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REQUIRED |
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Must be authenticated (signed) |
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by an authorized representative
(See instructions)
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/s/ Jo Lynn White
Authorized
Representative
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December 15, 2004
Date
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Jo Lynn White |
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Authorized Representative
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Last Revised: May 2002
Page 3 of 5
exv3w362
Exhibit 3.362
OPERATING AGREEMENT
OF CARBON LIMESTONE LANDFILL, LLC
This Operating Agreement is executed as of 16 day of December, 2004, by Browning-Ferris
Industries of Ohio, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Carbon Limestone Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Ohio law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Ohio shall be CT
Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114, County of Cuyahoga. The
registered office may be changed to any other place within the State of Ohio upon the consent of
the Member. The Company may maintain a registered office in any state within which it does business
at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Ohio are CT Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Ohio, and shall continue in perpetuity until the Company is dissolved as set
forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Ohio. The Member shall file any amendments to the Certificate of Formation
deemed necessary by it to reflect amendments to this Agreement adopted by the Member in accordance
with the terms hereof. Upon the approval of the Certificate of Formation, or any amendments
thereto, by the Member in accordance with this Agreement, the Member or a designee of a Member
shall be authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the
Member in full, disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 1705.47 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 1705.44 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Ohio Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
(b) Liquidation
and Distribution of Assets. Upon the dissolution of the Company, the Member,
or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Ohio Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed o t
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Ohio Law. The laws of the State of Ohio shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Revised Code
Chapter 1705, as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this
Agreement. If any Person is admitted as a Substituted Member pursuant to the terms of this
Agreement, Member shall also be deemed to refer to such Person. Member refers collectively to
all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to
the Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BROWNING-FERRIS INDUSTRIES OF OHIO, INC., |
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a Delaware corporation |
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By: |
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/s/ Jo Lynn White |
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Its: |
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Secretary |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Browning-Ferris Industries of Ohio, Inc.
15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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$ |
100.00 |
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7
exv3w363
Exhibit 3.363
CERTIFICATE OF INCORPORATION
OF
CC LANDFILL, INC.
1. The name of the corporation is CC LANDFILL, INC. (the Corporation).
2. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue One Thousand (1,000) common shares and the
par value of each of such shares is No Dollars and One Cents ($0.01) amounting in the aggregate to
Ten Dollars and Zero Cents ($10).
5. The name and mailing address of the incorporator are as follows:
Steven M. Helm
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
James Eng
G. Thomas Rochford, Jr.
Donald W. Slager
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
1
8. Elections of directors need not be by written ballot unless the bylaws of the Corporation
shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director of the
benefits hereof with respect to any act or omission occurring prior to such amendment or repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the Corporation or of any creditor or stockholder thereof, or on the application of
any receiver or receivers appointed for the Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the stockholders or class of stockholders
of the Corporation, as the case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation, as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors or class of creditors, and/or
on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also
on the Corporation.
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IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of
Incorporation to be duly executed this 23rd day of July, 1998 |
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/s/ Steven M. Helm |
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Steven M. Helm, Incorporator |
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2
exv3w364
Exhibit 3.364
BYLAWS
OF
CC LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall
be given not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote at such meeting.
Business transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the
exact number of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office. A director shall hold office until
the next Annual Meeting and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal from office.
Directors of the Corporation may be removed with or without cause by the affirmative vote of a
majority of the votes entitled to be cast by the holders of all the then issued and outstanding
shares of common stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or without the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with attached at Board stockholder
meetings, and shall receive such other compensation as determined by the stockholders from time to
time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this
reason, or solely because the director or officer is present at or participates in the meeting
of the Board of Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if (i) the material facts as to his
or their relationship or interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of
the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct
a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Written notice may also be
given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words Corporate Seal, Delaware. The
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything
contained
in this Article VIII to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall
not be obligated to indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w365
Exhibit 3.365
CERTIFICATE OF INCORPORATION
OF
NEWCO CHEMICAL WASTE SYSTEMS, INC.
under Section 402 of the Business Corporation Law
IT IS HEREBY CERTIFIED THAT:
(1) The name of the proposed corporation is:
NEWCO CHEMICAL WASTE SYSTEMS, INC.
(2) The purpose or purposes for which this corporation
is formed, are as follows, to wit:
To
establish, carry on, and develop the business
of producing, manufacturing, disposing of, utilizing, and trading in any and all kinds of
chemicals, organic and inorganic, crude and refined, and products of a similar character, and any
and all materials, products, and articles directly or indirectly related thereto in any way,
including all those which may be ingredients or derivatives thereof, or which may be useful in the
manufacture or production thereof, or which may be conveniently or advantageously manufactured
or produced in connection therewith, or in the manufacture or production of which the same may be
useful, and all by-products of such operations; to engage in any business or operation incidental
to any business above referred to; to search for, create, prospect, construct, manufacture,
purchase, hold, develop, operate,
treat,
use, transport, sell, mortgage, pledge, import, export, and otherwise acquire and
dispose of and deal in and with properties and rights, of whatever character and wherever
situated, real and personal, tangible and intangible, as may be necessary for or incidental to the
purposes aforesaid, including lands, mines, minerals, buildings, plants, equipment, warehouses,
materials, products, merchandise, securities, inventions, secrets, patents, trade-marks, and
goodwill; to make contracts, borrow money, contract debts, and issue notes, bonds, and
other obligations.
To acquire such property, real and personal, as may be necessary to the conduct of
such business.
The powers, rights and privileges provided in this Certificate of Incorporation are not to be
deemed to be in limitation of similar, other, or additional powers, rights and privileges granted
or permitted to a corporation by the Business Corporation Law, it being intended that this
corporation shall have the right to engage in such similar activities as like corporation may
lawfully engage in under the Business Corporation Law of the State of New York, as now in effect,
or as hereafter promulgated.
To do everything necessary, suitable or proper for the accomplishment, attainment or
furtherance of, to do every other act or thing incidental to, appurtenant
to, growing out of or connected with, the purposes, objects or powers set forth in this Certificate
of Incorporation, whether alone or in association with others; to possess all the rights, powers
and privileges now or hereafter conferred by the laws of the State of New York upon a corporation
organized under the laws of the State of New York and, in general, to carry on any of the
activities and to do any of the things herein set forth to the same extent and as fully as a
natural person or partnership might or could do; provided, that nothing herein set forth shall
be construed as authorizing the Corporation to possess any purpose, object, or power, or to do any
act or thing forbidden by law to a Corporation organized under the laws of the State of New York.
(3) The office of the corporation is to be located in the City of Niagara Falls, County of
Niagara, State of New York.
(4) The aggregate number of shares which the corporation shall have the authority to issue is
two hundred (200) shares, all of which are to be without par value.
(5) The Secretary of State is designated as agent of the corporation upon whom
process against it may be served. The post office address to which the Secretary of State
shall mail a copy of any process against the corporation served upon him is
c/o The Corporation
4626 Royal Avenue
Niagara Falls, New York 14303
(6) The corporations initial accounting period for reporting the franchise tax on
business corporations imposed by Article 9-A of the Tax Law shall end April 30, 1977.
The undersigned incorporator is of the age of eighteen years or over.
IN WITNESS
WHEREOF, this certificate has been subscribed this 7th day of May, 1976 by the undersigned who
affirms that the statements made herein are true under the penalties of perjury.
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Ruth E. Neufeld
170 Washington Avenue, Albany, New York 12210 |
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CERTIFIED COPY OF EXTRACT OF MINUTES OF
SPECIAL MEETING OF BOARD OF DIRECTORS
I, JOSEPH M. NASCA, Secretary of NEWCO WASTE SYSTEMS, INC., Do Hereby Certify that the
following is a true and exact copy of a Resolution duly adopted at a meeting of the
Board of Directors thereof duly called and regularly held in accordance with the laws
and the by-laws of said corporation on the 6th day of May, 1976, and that such
Resolution is now in full force and effect:
WHEREAS, NEWCO WASTE SYSTEMS, INC. filed a Certificate of Incorporation with the
Secretary of State on the 11th day of February, 1976, and
WHEREAS, NEWCO CHEMICAL WASTE SYSTEMS, INC. has requested that Newco Waste Systems, Inc.
consent to the use of the name Newco Chemical waste Systems, Inc., and
WHEREAS, in the opinion of the Board of Directors the name, Newco Chemical Waste Systems,
Inc. does not so nearly resemble that of Newco Waste Systems, Inc. as to be calculated to
deceive, be it
RESOLVED, that Newco Waste Systems, Inc. consents to the use of the name Newco
Chemical Waste Systems, Inc. as available for corporate use.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of said corporation, this 6th day of May, 1976.
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/s/ Joseph M. Nasca |
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Secretary |
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STATE OF NEW YORK
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SS. |
COUNTY OF ERIE
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On
the 6th day of May, 1976, before me came JOSEPH M. NASCA to me known to be the person
described in and who executed the foregoing certificate, and he duly acknowledged to me
that he executed the same.
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/s/ [ILLEGIBLE] |
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[ILLEGIBLE] |
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Commissioner of Deeds, Buffalo, New York
My Commission
Expires [ILLEGIBLE] 12/30/76 |
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
CECOS, CHEMICAL AND ENVIRONMENT CONSERVATION STYSTEMS, NIAGARA, INC.
Under Section 805 of the Business Corporation Law
We, Frank
R. Nero and James Moscato, the president and Secretary respectively
of CECOS International, Inc., hereby certify:
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The name of the corporation is CECOS CHEMICAL AND ENVIRONMENT
CONSERVATION STYSTEMS, NIAGARA, INC. It was formed under the name,
Newco Chemical Waste Systems, Inc. and its name was changed by the filing of an
Amendment to its Certificate of Incorporation with the Department of State on December
27, 1979, to CECOS Chemical and Environmental Conservation
Systems, Niagara Inc. |
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The certificate of its incorporation was filed by the Department of State on May 12, 1976. |
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The Certificate of Incorporation is amended to change the name of the corporation.
Paragraph One of the Certificate, which sets forth the name of
the corporation is
amended to read: |
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The name of the corporation is CECOS International, Inc. |
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The above amendment to the Certificate of Incorporation was duly authorized by vote of
the holders of a majority of all outstanding shares entitled to vote thereon at a meeting
of the shareholders. |
IN WITNESS WHEREOF, we have signed this certificate this 3rd day of March, 1980.
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Signed:
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/s/ Frank R. Nero
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President Frank R. Nero |
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/s/ James P. Moscato |
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Secretary James P. Moscato |
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STATE OF NEW YORK
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SS: |
COUNTY OF ERIE
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FRANK R. NERO, being duly sworn, deposes and says that he resides in Williamsville, New
York; he is the President of CECOS, CHEMICAL AND ENVIRONMENT CONSERVATION STYSTEMS, NIAGARA, INC., the corporation described in and which
executed the above Certificate of Amendment; that he has read the foregoing Certificate of
Amendment Of Certificate Of Incorporation and knows the contents thereof; and that the same is
true to his own knowledge; that he knows the seal of said corporation and that the Seal affixed to
said Certificate is such corporate seal.
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/s/ Frank R. Nero |
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Frank R. Nero |
Sworn to before me this
3rd day of March, 1980.
/s/ [ILLEGIBLE]
State of New York
Department of State
1 hereby certify that I have compared the annexed copy with the original document filed
by the Department of State and that
the same is a correct transcript of said original.
Witness my hand and seal of the Department of State on
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DEC 21 1982 |
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Acting Secretary of State |
G101961-004
CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION
of
NEWCO CHEMICAL WASTE SYSTEMS, INC.
Under Section 805 of the Business Corporation Law
WE, the undersigned, the president and asst. secretary respectively of NEWCO CHEMICAL WASTE
SYSTEMS, INC., hereby certify:
1. The
name of the corporation is NEWCO CHEMICAL WASTE SYSTEMS, INC.
2. The certificate of its incorporation was filed by the Department of State on May 12,
1976.
3. The certificate of incorporation is amended to change the name of the corporation.
Paragraph One of the certificate, which sets forth the name of the corporation is amended to
read:
The name of the corporation is CECOS, Chemical and Environmental Conservation Systems,
Inc.
4. The above amendment to the certificate of incorporation was duly authorized by vote of the
holders of a majority of all outstanding shares entitled to vote thereon at a meeting of the
shareholders.
IN WITNESS WHEREOF, this certificate has been signed by the subscriber this 11 day
of Dec, 1979.
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Signed:
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/s/ Frank R. Nero
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PresidentFrank R. Nero |
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/s/ Ernest R. Gedeon
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Assistant
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SecretaryErnest R. Gedeon |
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STATE
OF NEW YORK
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COUNTY OF ERIE
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Frank R. Nero , being duly sworn, deposes and says that he is the President of NEWCO
CHEMICAL WASTE SYSTEMS, INC., the corporation named in the within entitled action; that he has read
the foregoing CERTIFICATE OF AMENDMENT of CERTIFICATE OF INCORPORATION and knows the contents
thereof; and that the same is true to his own knowledge, except as to the matters therein stated to
be alleged upon information and belief, and as to those matters believes it to be true.
Sworn to before me this 11 day
of Dec 1979.
/s/
[ILLEGIBLE]
CERTIFICATE OF MERGER OF
BFI BFLO TRUCK TRANSFER CORP. AND CECOS INTERNATIONAL, INC.
INTO CECOS INTERNATIONAL, INC.
(Under Section 904 of the Business Corporation Law)
The undersigned hereby certify that we are, respectively, the President and
Assistant Secretary of BFI BFLO TRUCK TRANSFER CORP. (BFI) and the Vice President and Assistant
Secretary of CECOS International, Inc. (CECOS), and we do
hereby further certify as follows:
1. (a) The names of each constituent corporation are BFI BFLO TRUCK TRANSFER CORP, and CECOS
International, Inc.
(b) CECOS was originally incorporated under the name Newco Chemical Waste Systems, Inc.
(c) CECOS (subject to the amendments to its certificate of incorporation contained in
paragraph 4 hereof) is the surviving corporation.
2. (a) CECOS is authorized to issue 200 shares of no par value common stock, all of one class.
(b) As of this date, 200 shares of CECOS stock have been issued, and all 200 shares are
outstanding.
(c) The number of such shares is not subject to change prior to the effective date of the
merger.
3. (a) BFI is authorized to issue 200 shares of no par value common stock, all of one class.
-2-
(b) As of this date, 10 shares of BFIs stock have been issued, and all 10 shares are
outstanding.
(c) The number of such shares is not subject to change prior to the effective date of the
merger.
4.
CECOS certificate of incorporation shall be amended upon the effective date of the merger,
as follows:
(a) Paragraph
(2), which sets forth the purposes for which the corporation is formed, shall
be amended to change its corporate purposes and shall read as follows:
(2). The purposes for which it is formed are to engage in any lawful act or activity for which
corporations may be organized under the Business Corporation Law; provided, however, that the
corporation is not formed to engage in any act or activity requiring the consent or approval of any
state official, department, board, agency or other body without such consent or approval first
being obtained.
(b) Paragraph (3), which sets forth the location where the principal office of the
corporation is to be located, shall be amended to change the location of the office of the
corporation and shall read as follows:
(3). The office of the corporation is to be located in the Village of Kenmore; Erie County,
New York.
(c) Paragraph (4), which describes and sets forth the aggregate number of shares
which the corporation shall have authority to issue, shall be amended to increase the aggregate
number of shares which the corporation shall have authority to issue and shall read as follows:
- - 3 -
(4). The aggregate number of shares which the corporation shall have authority to issue
is two hundred fifty (250) no par value shares, all of one class.
(d) Paragraph (5), which designates the Secretary of State an agent of the corporation
upon whom process may be served and the address to which the Secretary of State shall mail a copy
of such process against the corporation served upon him, shall be amended to change the address to
which the Secretary of State shall mail a copy of any process against the corporation served upon
him and shall read as follows:
(5).
The Secretary of State of the State of New York is designated all the agent of the
corporation upon whom service against the corporation may be served. The post office address to
which the Secretary of State shall mail a copy of any such process served upon him is: Office of
the President, CECOS International, Inc., 2321 Kenmore Avenue, Kenmore, New York, 14217.
(e) Paragraph (6), which acts forth the accounting period the Corporation intends to
establish as its first fiscal year, is hereby deleted.
5. (a) CECOS certificate of incorporation was filed by the Department of State on May 12,
1976, under the name Newco Chemical Waste Systems, Inc.
(b) BFIs certificate of incorporation was filed by the Department of State on January 19,
1984.
6. All of the shareholders of BFI and CECOS authorized this merger by unanimous written
consent.
7. The plan of merger has not been abandoned.
- - 4 -
IN
WITNESS WHEREOF, this Certificate has been signed this 23rd day of January, 1984 by
the undersigned, who affirm that the statements made herein are true under penalties of perjury.
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BFI BFLO TRUCK TRANSFER CORP. |
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By
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/s/ Norman Dominiak |
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Norman Dominiak, President |
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By
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/s/ Elizabeth Ivers |
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Elizabeth Ivers, Assistant Secretary |
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CECOS INTERNATIONAL, INC. |
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By
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/s/ Norman Dominiak |
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Norman Dominiak, Vice President |
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By
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/s/ Elizabeth Ivers |
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Elizabeth Ivers, Assistant Secretary |
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exv3w366
Exhibit 3.366
AMENDED AND RESTATED BYLAWS
OF
CECOS INTERNATIONAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
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ARTICLE
III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four
(24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
6
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
7
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
8
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
10
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE
VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of
this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w367
Exhibit 3.367
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:33 PM 04/28/2005
FILED 05:29 PM 04/28/2005
SRV 050345332 3962214 FILE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
BFI ELLIOTT LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, do hereby certify
as follows:
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I. |
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The name of the limited partnership is BFI Elliott Landfill TX, LP. |
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II. |
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The address of the Partnerships registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware, 19801. The name of the Partnerships registered agent
for service of process in the State of Delaware at such address is The
Corporation Trust Company. |
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III. |
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The name and mailing address of the general partner are as follows: |
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Allied Waste Landfill Holdings, Inc.
15880 N Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260 |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited
Partnership of BFI Elliott Landfill TX, LP as of April 28, 2005.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, |
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its General Partner |
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Title:
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Secretary |
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STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
The undersigned, desiring to amend the Certificate of Limited Partnership
pursuant to the provisions of Section 17-202 of the Revised Uniform Limited
Partnership Act of the State of Delaware, does herby certify as follows:
FIRST: The name of the Limited Partnership is BFI Elliott Landfill TX, LP.
SECOND: Article III of the Certificate of Limited Partnership shall be
amended as follows:
The name and mailing address of the general partner(s) is as follows:
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Name |
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Mailing Address |
Allied Waste Landfill Holdings, Inc.
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18500 North Allied Way |
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Phoenix, Arizona 85054 |
THIRD: Article IV of the Certificate of Limited Partnership shall be added
as follows:
The name and mailing address of the Limited Partnership is as follows:
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Name |
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Mailing Address |
BFI Elliott Landfill TX, LP
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18500 North Allied Way |
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Phoenix, Arizona 85054 |
IN WITNESS WHEREOF, the undersigned executed this Amendment to the
certificate of Limited Partnership on this 17th day of November, A.D. 2006.
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/s/ Ryan N. Kenigsberg |
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Ryan N. Kenigsberg, Vice President
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By: Allied Waste Landfill Holdings, Inc., its General Partner |
State of Delaware
Secretary of State
Division of Corporations
Delivered 11:58 AM 11/22/2006
FILED 10:05 AM 11/22/2006
SRV 061072845 3962214 FILE.
State of Delaware
Secretary of State
Division of Corporations
Delivered 09:15 PM 02/26/2008
FILED 08:56 PM 02/26/2008
SRV 080230752 3962214 FILE
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
BFI ELLIOTT LANDFILL TX, LP
The undersigned, desiring to amend the Certificate of Limited Partnership of BFI
Elliott Landfill TX, LP pursuant to the provisions of Section 17-202 of the Revised
Uniform Limited Partnership Act of the State of Delaware, does hereby certify as follows:
FIRST: The name of the Limited Partnership is BFI Elliott Landfill TX, LP.
SECOND: Article 1 of the Certificate of Limited Partnership shall be amended as
follows:
The name of the limited partnership is Cefe Landfill TX, LP.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate
of Limited Partnership on this 26th day of February, 2008.
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ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, General Partner |
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By:
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/s/ Jo Lynn White |
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Jo Lynn White, Secretary
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exv3w368
Exhibit 3.368
AGREEMENT OF LIMITED PARTNERSHIP OF
BFI ELLIOTT LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of April 28, 2005, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and ALLIED
WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is BFI Elliott Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
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Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement. |
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon the
unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
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2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be
approved by the General Partner. No Partner shall be required to make a loan to the
Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash Flow,
if any, shall be distributed to the Partners in proportion to their Percentage Interests at such
times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4, in any
manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited
by this Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership;
and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may rely
upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a
condition precedent to acts by the General Partner or that are in any other manner germane to the
affairs of the Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
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5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right, during
ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer that does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
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(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION
9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases
to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if any,
shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no General
Partner, any Limited Partner may nominate one or more Persons for election as General Partner,
which Person or Persons shall have the right and the power to continue the Partnership and its
business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
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10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and items
thereof of the Partnership for the taxable year in which the liquidation of the Partnership occurs
shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners as
closely as possible to distributions of such liquidation proceeds pursuant to the priorities set
forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall
not be deemed (a) to authorize any Transfer not otherwise permitted under this Agreement, (b)
to confer upon the assignee of a Partners interest any rights not specifically granted under this
Agreement, or (c) to supersede or modify in any manner any provision of Section 8 hereof.
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11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance with
Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not ceased
to be a General Partner pursuant to the terms of this Agreement. General Partners means all such
Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a Limited
Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of this
Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is required by the context in which the term is used herein. Partner means any one of
the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., a
Delaware corporation |
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Allied Waste Systems Holdings,
Inc., a Delaware corporation |
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By
Name:
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/s/ Steven M. Helm
Steven M. Helm
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By
Name:
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/s/ Jo Lynn White
Jo Lynn White
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Its:
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Vice President
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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$ |
10.00 |
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1 |
% |
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Limited Partner:
Allied Waste Systems Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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$ |
990.00 |
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99 |
% |
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exv3w369
Exhibit 3.369
CORPORATION FOR PROFIT
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APPROVED FOR FILING |
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By:
Date:
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/s/ [ILLEGIBLE]
[ILLEGIBLE]
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Amount:
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[ILLEGIBLE] |
Articles of Incorporation
OF
(Name of Corporation)
The undersigned, a majority of whom are citizens of the United States, desiring to form a
corporation, for profit, under Sections 1701.01 et seq. of the Revised Code of Ohio, do hereby
certify:
FIRST. The name of said corporation shall be WBT, Inc.
SECOND. The place in Ohio where its principal office is to be located is 600 West Statler
Road, Piqua, Ohio 45356, Miami County. (City, Village or Township)
THIRD. The purposes for which it is formed are:
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To engage in any lawful act or activity for which Corporations may be formed under Section
1701.01 to 1701.98, inclusive
of the Revised Code of the State of Ohio. |
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2. |
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In furtherance and not in limitation of the general powers conferred by the Laws of the
State of Ohio, and the objects and purposes herein set forth, it is expressly provided that
this Corporation shall also have the following powers, to-wit: |
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a. |
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To buy or otherwise acquire, own, hold, manage, and control real and personal
property of every description, including its own stock and stock in other
corporations, and to sell and convey, mortgage, pledge, lease, or otherwise dispose of
such property or any part thereof, and to lend money either upon or without security. |
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b. |
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To carry on any or all of its operations and business, and to promote its
objects within the State of Ohio, or elsewhere, without restriction as to place or
amount. |
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c. |
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To do any or all of the things herein set forth to the same extent as
natural persons might or could do, and in any part of the world, as principals,
agents, con tractors, trustees, or otherwise, alone or in company with others. |
FOURTH. The number of shares which the corporation is authorized to have outstanding is
One Thousand (1,000) shares of no par value common stock.
FIFTH. The amount of stated capital with which the corporation shall begin business is Five Hundred
and 00/100 Dollars ($500.00).
IN WITNESS WHEREOF, We have hereunto subscribed our names, this 9th day of March, 1972.
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WBT, Inc. |
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(Name of Corporation) |
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/s/ Don M. Purdy
Don M. Purdy
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/s/ John W. Sacher
John W. Sacher
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/s/ Audrey Baltzell
Audrey Baltzell
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(INCORPORATORS NAMES SHOULD BE TYPED OR PRINTED BENEATH SIGNATURES) |
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N.B. |
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Articles will be returned unless accompanied by form designating statutory agent. See Section
1701.07, Revised Code of Ohio. |
[ILLEGIBLE]
CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION
B. J. Swonger, president, and Carroll V. Lewis, secretary, of WBT, Inc. , with its principal
office located in Piqua, Ohio, do hereby certify that in a writing signed by all of the
shareholders entitled to notice of a meeting for such purpose, the following resolution was
adopted:
RESOLVED, that the following amended articles of incorporation be, and the same are hereby,
adopted to supersede and take the place of all of the existing articles of incorporation, and all
amendments thereto:
AMENDED ARTICLES OF INCORPORATION
FIRST: The name of the corporation is WBT, INC.
SECOND: The place in the State of Ohio where its principal office is to be located is 600 West
Statler Road, Piqua, Miami County, Ohio, 45356.
THIRD: The purpose or purposes for which it is formed are:
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To engage in the collection and disposal of waste products, rubbish and debris of all
types and nature, and to that end, buy, sell, lease, rent, and operate waste products collection
systems, including containerized systems, and to buy, sell, lease, rent, maintain and operate
landfill disposal areas, incinerators, compost disposal units, and other methods and means of
disposal of such waste materials. |
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To engage in the business of purchasing, selling, and distributing, all types and kinds of
waste products and debris. |
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
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To manufacture , purchase, or otherwise acquire, sell, assign, and transfer, exchange or
otherwise dispose of, and to invest, trade, deal in or deal with goods, wares, and merchandise and
services and personal property of every class and description. |
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To purchase, acquire, hold, mortgage, pledge, hypothecate, loan money upon, exchange,
sell, and otherwise deal in personal property and real property in services of every kind and
character and description whatsoever and wheresoever situate, and any interest therein. |
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To acquire all or any part of the goodwill, rights , property and business of any
corporation, association, partnership, firm, trustee, syndicate, combination, organization, or
other entity, or individual, domestic or foreign, heretofore or hereafter engaged in any business,
similar to the business of the corporation or otherwise, and to pay for the same in cash or in
share or enjoy in any manner, dispose of the whole or any part of the rights and property so
acquired, and to assume in connection therewith any liabilities of any such corporation,
association, partnership, firm, trustee, syndicate, combination, organization, individual or
entity, domestic or foreign, and to conduct in the State of Ohio and not in any other state,
territory, locality or country the whole or
any part of the business thus acquired, provided such business is not prohibited by the laws
of the State of Ohio. |
The corporation reserves the right, at any time, and from time to time, substantially, to
change its purposes , in the manner now or hereafter permitted by statute. Any change of the
purposes of the corporation, authorized
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
or approved by the holders of the shares entitling them to exercise the proportion of the
voting power of the corporation now or hereafter required by statute shall be binding and
conclusive upon every shareholder of the corporation as fully as if such shareholder had voted
therefor; and no shareholder notwithstanding that he may have voted against such change of purposes
or may have objected in writing thereto, shall be entitled to payment of the fair cash value of his
shares.
FOURTH: The maximum number of shares which the corporation is authorized to have outstanding
is One Thousand (1000) , all of which shall be without par value.
Before there can be a valid sale or transfer of any of the shares of this corporation by the
holders thereof, the holder of the shares to be sold or transferred shall first give notice in
writing to the secretary of this corporation of his intention to sell or transfer such shares. Said
notice shall specify the number of shares to be sold or transferred, the price per share, and the
terms upon which such holder intends to make such sale or transfer. The secretary shall, within
five (5) days thereafter, mail or deliver a copy of said notice to each of the other shareholders
of record of this corporation. Such notices may be delivered to such shareholders personally, or
may be mailed to the last known addresses of such shareholders, as the same may appear on the books
of this corporation. Within
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
ten (10) days after the mailing or delivering of said notices to such shareholders, any such
shareholder or shareholders desiring to acquire any part or all of the shares referred to in said
notice shall deliver by mail or otherwise to the secretary of this corporation a written offer or
offers to purchase a specified number or numbers of such shares at the price and upon the terms
stated in said notice.
If the proposed transfer is one of gift or results from the death of a shareholder or by
operation of law, then and in such event the price to be paid by the shareholder seeking to acquire
said stock shall be the fair market value of said stock as of the last day of the month preceding
the month in which the notice is given. Market value shall be determined by mutual agreement
between the disposing shareholder and the shareholders exercising such election to purchase, and in
the event of disagreement, an appraisal shall be made by an independent appraiser selected by
mutual agreement between the parties in dispute, decision of said independent appraiser to be final
and binding on all parties. If the parties are unable to agree within a reasonable time upon said
independent appraiser, the fair market value shall be determined promptly in accordance with Ohio
Arbitration Laws then in force and effect.
If the total number of shares specified in such offers exceeds the number of shares referred
to in said notice, each offering shareholder shall be entitled to purchase such proportion of the
shares referred to in
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
said notice to the secretary, as the number of shares of this corporation, which he holds,
bears to the total number of shares held by all such shareholders desiring to purchase the shares
referred to in said notice to the secretary.
If all of the shares referred to in said notice to the secretary are not disposed of under
such apportionment, each shareholder desiring to purchase shares in a number in excess of his
proportionate share, as provided above, shall be entitled to purchase said proportion of those
shares which remain thus undisposed of, as the total number of shares which he holds bears to the
total number of shares held by all of the shareholders desiring to purchase shares in excess of
those to which they are entitled under such apportionment.
If none or only a part of the shares referred to in said notice to the secretary is purchased
as aforesaid, in accordance with offers made within said ten (10) day period, the corporation shall
have the right and option to purchase said shares within an additional ten (10) day period upon the
terms stated in said notice.
If the proposed transfer is one of gift or results from the death of a shareholder or by
operation of law, then and in such event the price to be paid by the corporation shall be the fair
market value of said stock as of the last day of the month preceding the month in which the notice
is given. Market value for such purpose shall be determined by an independent appraiser
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
selected by mutual agreement between the disposing shareholder and the corporation, and in the
event of disagreement on the selection of said appraiser, such fair market value shall be
determined in accordance with Ohio Arbitration Laws then in force and effect.
If none or only a part of the shares referred to in said notice to the secretary is purchased
as aforesaid, in accordance with offers made within said twenty (20) day period, the shareholder
desiring to sell or transfer may dispose of all shares of the stock referred to in said notice to
the secretary not so purchased by the other shareholders or corporation, to any person or persons
he may so desire; provided, however, that he shall not sell or transfer such shares at a lower
price or on terms more favorable to the purchaser or transferee than those specified in said notice
to the secretary, and subject to the further condition that the person or persons acquiring said
shares shall hold the same subject to the same restrictions as outlined above in connection with
any future sale or transfer thereof.
The provisions hereof shall be binding upon the heirs, administrators, executors, and assigns
of each of the individual shareholders of this corporation.
The provisions herein set forth restricting transfer of shares of stock in the corporation may
be embodied and superseded by an agreement of sale and/or redemption entered into by all of the
shareholders of the corporation.
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
FIFTH: The Board of Directors is hereby authorized to fix and
determine and to vary the amount of working capital of the corporation, and to determine
whether any, and if any, what part of its surplus, however created, or arising, shall be used or
disposed of or declared in dividends or paid to the shareholders, and, without action by the
shareholders, to use and apply said surplus, or any part thereof, at any time, or from time to
time, in the purchase or acquisition of shares of any class, voting trust certificates for shares,
bonds, promissory notes, script, warrants, obligations, evidences of indebtedness of the
corporation, or other securities of the corporation, to such extent or amount as they shall deem
expedient.
SIXTH: No holder of the shares of the corporation of any class
shall be entitled to such, as a matter or right, to subscribe for or purchase shares of any
class, now or hereafter authorized, or to purchase or subscribe for securities convertible into or
exchangeable for shares of the corporation, or to which shall be attached or appertained any
warrants or rights entitling the holder thereof to subscribe for or purchase shares, except such
rights of subscription or purchase, if any, at such price or prices, and upon such terms and
conditions as the Board of Directors in its discretion from time to time may determine.
SEVENTH: Every statute of this State of Ohio hereinafter enacted whereby the rights or
privileges of the shareholders of the corporation
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
organized under the General Corporation Act of said state are increased, diminished, or in any
way affected, whereby effect is given to any action authorized, ratified, or approved by less than
all of the shareholders of any such corporation, shall apply to this corporation and be binding
upon every shareholder thereof to the same extent as if such statute had been in force on the day
of filing these articles of incorporation.
EIGHTH: A director of this corporation shall not be disqualified, by his office from dealing
or contracting with the corporation as a vendor, purchaser, employee, agent or otherwise; or shall
any transaction or contract or act of this corporation be void or voidable or in any way affected
or invalidated by reason of the fact that any director, or any firm of which any director is a
member, or any corporation which any director is a shareholder or director, is any way interested
in such transactions, or contract, or act, provided the fact that this director of such firm, or
such corporation, is so interested shall be disclosed or shall be known to the Board of Directors
or such members thereof as shall be present at any meeting of the Board of Directors at which
action is taken upon any such contract or transaction or act, or shall any such director be
accountable or responsible to the corporation for any gains or profits realized by him because of
which he is a shareholder or director, or is interested in such transaction or contract or act; and
any such director may be counted in determining the existing quorum at any meeting of the Board of
Directors
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
of the corporation which shall authorize or take action in respect to any such contract or
transaction or act, and may vote thereat to authorize, ratify or approve any such contract or
transaction or act, with like force and effect as if he or any firm of which he is a member, or any
corporation of which he is a shareholder or director, were not interested in such transaction or
act.
NINTH: Whenever any action to be taken at a shareholders
meeting is by law required to have the assent or approval of the shareholders of a particular
class, such assent or approval may be given by the affirmative vote of the holders of the majority
of shares having voting power in respect to such action.
IN WITNESS WHEREOF, said B. J. Swonger, president, and Carroll V. Lewis, secretary of WBT,
Inc. , acting for and on behalf of said corporation, have hereunto subscribed their names and
caused the seal of said corporation to be hereunto affixed this 5 day of April, 1972.
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WBT, INC.
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/s/ B. J. Swonger
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President |
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/s/ Carroll V. Lewis
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Secretary |
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CARROLL V. LEWIS
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ATTORNEY AT LAW
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SIDNEY, OHIO |
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C-106
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Prescribed by
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Charter # 422561 |
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TED W. BROWN
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Approved by [ILLEGIBLE] |
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Secretary of State
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Date 3-29-82 |
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Fee $35.00 |
CERTIFICATE OF AMENDMENT
(BY SHAREHOLDERS)
TO THE ARTICLES OF INCORPORATION OF
WBT, Inc.
(Name of Corporation)
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o
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Chairman of the Board |
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B. J. Kiley, who is
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President
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(check one), |
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Vice President |
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and Harold W. Fritz, who is
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Secretary
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(check one) |
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Assistant Secretary |
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of the above named Ohio corporation for profit with its
principal location at
Celina, Ohio do hereby certify that: (check the appropriate box and complete the appropriate statements)
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a meeting of the shareholders was duly called and held on , 19___, at which meeting a
quorum of the shareholders was present in person or by proxy, and by the affirmative vote
of the holders of shares entitling them to exercise % of the voting power of the
corporation, |
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in a writing signed by all of the shareholders who would
be entitled to a notice of a meeting held for that purpose, |
the following resolution was adopted to amend the articles:
RESOLVED, that the First Article of the Articles of Incorporation
of the Corporation is hereby amended to be and read as follows:
FIRST: The name of the Corporation is Laidlaw Waste Systems (Ohio)
Inc.
IN WITNESS WHEREOF, the above named officers acting for and on behalf of the corporation, have
subscribed their names this 12th day of March, 1982
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/s/ B. J. Kiley |
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B. J. Kiley
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(President) |
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/s/ Harold W. Fritz |
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Harold W. Fritz
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(Secretary) |
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NOTE:
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Ohio law does not permit one officer to sign in two capacities. Two separate
signatures are required, even if this necessitates the election of a second officer
before the filing can be made. |
(OHIO 613 10/20/78)
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C-106
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Prescribed by
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Charter 422561 |
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TED W. BROWN
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Approved by [ILLEGIBLE] |
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Secretary of State
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Date 3-29-82 |
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Fee $35.00 |
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CERTIFICATE OF AMENDMENT
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(BY SHAREHOLDERS) |
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TO THE ARTICLES OF INCORPORATION OF |
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WBT, Inc.
(Name of Corporation)
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Chairman of the Board |
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B. J. Kiley, who is
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President
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(check one), |
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Vice President |
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and Harold W. Fritz, who is
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Secretary
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(check one) |
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Assistant Secretary |
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of the
above named Ohio corporation for profit with its principal location at Celina, Ohio do
hereby certify that: (check the appropriate box and complete the appropriate statements)
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a meeting of the shareholders was duly called and held on
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19___, at which meeting a quorum
of the shareholders was present in person or by proxy, and by
the affirmative vote of the holders of shares entitling them
to exercise % of the voting power of the corporation, |
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in a writing signed by all of the shareholders who would
be entitled to a notice of a meeting held for that purpose, |
the following resolution was adopted to amend the articles: |
RESOLVED, that the First Article of the Articles of Incorporation
of the Corporation is hereby amended to be and read as follows:
FIRST: The name of the Corporation is Laidlaw Waste
Systems (Ohio) Inc.
IN WITNESS WHEREOF, the above named officers acting for and on behalf of the
corporation, have subscribed their names this 12th day of March, 1982.
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/s/ B. J. Kiley |
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B. J. Kiley
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(President) |
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/s/ Harold W. Fritz |
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Harold W. Fritz
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(Secretary) |
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NOTE:
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Ohio law does not permit one officer to sign in two capacities. Two separate signatures
are required, even if this necessitates the election of a second officer before the filing
can be made. |
(OHIO 613 10/20/78)
[ILLEGIBLE]
[ILLEGIBLE]
[ILLEGIBLE]
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o
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Chairman of the Board |
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Leslie W. Haworth, who is
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President
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(check one), |
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Vice President |
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and Ivan R. Cairns, who is
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Secretary
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(check one) |
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Assistant Secretary |
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of the
above named Ohio corporation for profit with its principal location at [ILLEGIBLE], Ohio do
hereby certify that: (check the appropriate box and complete the appropriate statements)
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a meeting of the shareholders was duly called and held on
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19___, at which meeting a quorum
of the shareholders was present in person or by proxy, and by
the affirmative vote of the holders of shares entitling them
to exercise % of the voting power of the corporation, |
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in a writing signed by all of the shareholders who would
be entitled to a notice of a meeting held for that purpose, |
the following resolution was adopted to amend the articles:
RESOLVED,
that the Certificate of Incorporation of Laidlaw Waste
Systems (Ohio) Inc. be amended by changing the First Article thereof
so that, as amended said Article shall be and read as follows:
FIRST: The name of the Corporation is Laidlaw Waste Systems (Celina)
Inc.
IN WITNESS WHEREOF, the above named officers acting for and on behalf of the
corporation, have subscribed their names this 29th day of
June, 1987
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/s/ Leslie W. Haworth |
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(Vice President) |
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/s/ Ivan R. Cairns |
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(Secretary) |
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[ILLEGIBLE]
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[ILLEGIBLE] [ILLEGIBLE] 20 East Broad [ILLEGIBLE]
Columbus Ohio 43266-04 Form SH-AMD (January 1997) |
CERTIFICATE OF AMENDMENT
by Shareholders to the Articles of Incorporation of
Laidlaw Waste Systems (Celina) Inc.
(Name of Corporation)
Don Slager, who is:
o
Chairman of the Board o President þ Vice President (check one)
and
Thomas K.
Kehoe, who is: þ Secretary
o Assistant Secretary (Check one)
of the above named Ohio corporation for profit do hereby certify that: (check the appropriate box
and complete the appropriate statements)
o |
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a meeting of the shareholders was duly called for the purpose of adopting this amendment and
held on , 19 at which meeting a
quorum of the shareholders was present in person or by proxy, and by the affirmative vote of the holders of shares entitling
them to exercise % of the voting power of the corporation. |
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in a writing signed by all of the shareholders who would be entitled to notice of a
meeting held for that purpose, the following resolution to amend the articles was adopted: |
The name
of the corporation is Celina Landfill, Inc.
IN
WITNESS WHEREOF, the above named officers, acting for and on the behalf of the corporation,
have hereto subscribed their names this day (December, 1997.
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By |
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/s/ Don Slager |
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Don Slager Executive President
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By |
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/s/ Thomas K. Kehoe |
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Thomas K. Kehoe Secretary |
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NOTE:
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Ohio law does not permit one
officer to sign in two capacities. Two separate signatures are
required, even if this necessitates the election of a second officer
before the filing can be made. |
[ILLEGIBLE])
exv3w370
Exhibit 3.370
EXHIBIT A
CODE OF REGULATIONS
of
WBT, INC.
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of the corporation
shall be held on the first Monday in February of each year, if not a legal holiday, and if a legal
holiday, then on the next succeeding day which is not a legal holiday, at such hour and place as
shall be stated in the notice of said meeting. At each annual meeting, the Board of Directors
shall be elected and qualified, the reports of the officers shall be considered thereat, and any
other business that shall be presented at any of said meetings may be transacted thereat.
Section 2. Special Meetings. Special meetings of the shareholders may be called
by the president or a vice president, by a majority of the members of the Board of Directors
acting with or without a meeting, or by the persons who hold twenty-five percent of all of the
shares outstanding and entitled to vote thereat.
Section 3. Notices. Upon the request in writing delivered to the president by any
person entitled to call a meeting of the shareholders, it shall be the duty of the secretary
to give notice to the shareholders, and if such request be refused, then the person making
such request may call a meeting by giving notice in the manner required by law. A notice of
all meetings of the shareholders shall be given in writing by the secretary mailed to each
shareholder of record entitled to notice of such meeting, at his address as it appears upon
the records of the corporation, at least five (5) days prior thereto.
Section 4. Quorum. The holders of a majority of shares outstanding and entitled
to vote at the meeting, present in person or represented by proxy, shall be requisite to and
shall constitute a quorum at all meetings of the shareholders. If, however, such a number
shall not be present or represented at any meeting of the shareholders, the shareholders
present
in person or by proxy shall have power to adjourn the meting from time to time
without notice other than announcement at the meeting, until the requisite number of shares
shall be represented. At such adjourned meeting at which the requisite number of shares
shall be represented, any business may be transacted which might have been transacted at the
meeting as originally called.
Section 5. Signatures of Certificates. Certificates for shares shall be signed
by the officers in the manner permitted by Section 1701.54 of the Revised Code of Ohio.
Section 6. Transfers. Transfers of shares shall be made only upon the books of the
corporation by the holder thereof in person or by his attorney or his legal representative, upon
surrender and cancellation of the certificates for a like number of shares. The Board of
Directors may make such rules and regulations, as it may deem expedient concerning the same,
transfer and registration of shares of the corporation, including the issuance of a duplicate
certificate in place of a lost certificate.
Section 7. Closing of Transfer Books. A record of ownership and transfers of
the shares of the corporation shall be kept in such manner and by such agencies as the Board
of Directors may from time to time determine, and the books for transfers of shares may be
closed at any time by order of the Board of Directors, but not for a period exceeding two (2)
days.
Section 8. Inspection and Audits. The person or persons who hold twenty-five
percent (25%) of all shares outstanding of any class shall be entitled to inspect, examine, or
audit, at any time, personally, or by agent, the property, books, records and accounts of the
corporation.
ARTICLE II
Board of Directors
Section 1. Number. The Board of Directors shall consist of not less than one (1),
and not more than five (5) members.
Section 2. Vacancies. Vacancies in the Board of Directors may be filled for the
unexpired term by a majority vote of the remaining directors.
Section 3. Meetings. All meetings of the Board of Directors may be held at such
times and places, within or without the State of Ohio, as may be provided in the By-laws or
resolutions adopted by the Board of Directors, and upon such notice, if any, shall be so provided
therefor.
Section 4. Quorum. A majority of the directors in office at the time shall
constitute a quorum for the meeting of the Board of Directors, and an adjournment may be taken by a
vote of the majority of those present at any meeting. At each meeting of the Board of Directors
at which a quorum is present, all questions and business shall be determined by the affirmative
vote of not less than a majority of the directors present.
Section 5. By-laws. The Board may adopt By-laws for its government and therein or by
resolution provide for such committees as may from time to time be found desirable.
Section 6. Compensation. The Board of Directors is authorized to fix a reasonable
compensation for attendance at any meeting of the Board to be paid to each director and the Board
of Directors is authorized to set, fix and determine the salaries which shall be paid the
respective executives of the corporation.
ARTICLE III
Officers
Section 1. Election and Appointments. The Board of Directors, at its first meeting
after the meeting of shareholders at which directors are elected, shall elect a president, vice
president, secretary and treasurer, and such other officers as the Board may see fit. Any two or
more of such officers, other than that of president and vice president, may be held by the same
person, but no officers shall execute, acknowledge or verify any instrument in more than one
capacity.
Section 2. Tenure of Office. The officers of the corporation shall hold office during
the pleasure of the Board of Directors who may remove any officer at any time. Vacancy in any
office, however created, may be filled by the election by the Board of Directors.
ARTICLE IV
Corporate Seal
The corporation shall have no seal.
ARTICLE V
These regulations are at all times subject to the provisions of the articles of incorporation
of the corporation, (including in such term, whenever used in these regulations, all amendments
to the articles of incorporation in force at the time), and in case of any conflict between any
provisions herein and in the articles, the provisions of the articles shall be deemed to govern.
ARTICLE VI
These regulations may be altered, changed, modified, or amended in any respect, or superseded
by new regulations, in whole or in part by the affirmative vote of the holders of record of shares
entitling them to exercise a majority of the voting power with respect thereto at an annual or
special meeting called for such purpose, or without a meeting by the written consent of the holders
of record of all shares entitled to vote with respect thereto.
ARTICLE VII
Each director, officer, and non-officer employee of the corporation shall be indemnified by
the corporation against the costs and expenses reasonably incurred by him in connection with the
defense of any action, suit or proceeding to which he is made a party by reason of his being or
having been a director, officer, or non-officer employee of the corporation (whether or not he is a
director, officer, or non-officer employee at the time of incurring such costs and expenses),
except with respect to matters as to which he shall be adjudged in such action, suit or proceeding
to be liable for dereliction, or negligence in the performance of his duty as such director,
officers, or non-officer employee. In case of the settlement of any action, suit or proceeding
to which any director, officer, or non-officer employee of the corporation is made a party or which
may be threatened to be brought against him by reason of his being or having been a director,
officer, or non-officer employee of the corporation, he shall be indemnified by the corporation
against the costs and expenses (including the cost of settlement), reasonably incurred by him in
connection with suit, action, suit or proceeding (whether or not he is a director, officer, or
non-officer employee, at the time of incurring such costs and expenses), if an independent quorum
of the Board of Directors shall find that such director, officer, or non-officer employee, was not
derelict or negligent in the performance of his duty as such director, officer, or non-officer
employee with respect to the matters covered by such action, suit, or proceeding, and the cost to
the corporation of indemnifying such director, officer, and non-officer employee (and all other
directors, officers, and non-officer employees, if any, entitled to indemnification hereunder in
such case, if such action, suit or proceeding were carried to a final adjudication in their favor
would exceed the amount of costs and expenses to be reimbursed to such director, officer, or
non-officer employee as a result of such settlement.
EXHIBIT B
BY-LAWS
of
WBT, INC.
ARTICLE I
Meetings
Section 1. Annual Meeting. Upon the final adjournment of each annual meeting of the
shareholders at which directors are elected, and upon the final adjournment of any special meeting
of shareholders at which a Board of Directors is elected, the annual meeting of directors shall be
held at the same place at which such meeting of shareholders was held for the purpose of the
organization of a new Board of Directors, and election and appointment of officers and the
transaction of any other business which may be presented thereat. No notice of such annual
meeting need be given. If no annual meeting of the Board of Directors is so held, a special
meeting may thereafter be called and held for the same purpose or purposes.
Section 2. Regular Meetings. Regular meetings of the Board of Directors may be held at
such time and place, within or without the State of Ohio, as may be from time to time prescribed by
resolution of the Board of Directors. Unless otherwise provided in any such resolution, no notice
of such regular meeting need be given.
Section 3. Special Meetings. Special meetings of the Board of Directors may be held at
any time, within or without the State of Ohio, upon call by the president, a vice president, or any
two directors. Notice of such meeting shall be given to each director by letter or telegram, or
in person not less than twenty-four (24) hours prior to such meeting; provided, however, that such
notice shall be deemed to have been waived by the directors attending such meeting, and may be
waived in writing or by telegram by any director, either before or after such meeting. Unless
otherwise indicated in the notice thereof, any business may be transacted at any regular or special
meeting.
ARTICLE II
Signatures
The Board of Directors may from time to time fix by resolution the authorities of
the various officers and employees of the corporation in respect to signatures in the
corporations minutes.
ARTICLE III
Amendments
These By-laws may be amended or added to by a majority action of the Board of Directors
of the corporation.
exv3w371
Exhibit 3.371
AZ Corp. Commission
01315700
DO NOT PUBLISH THIS SECTION
AZ CORPORATION COMMISSION
FILED
EXP AUG 29 2005
FILE NO 1225896.9
ARTICLES OF INCORPORATION
OF
(An Arizona Business Corporation)
ARTICLE 1
The corporate name must contain a corporate ending which may be corporation, association,
company, limited,
incorporated or an abbreviation of any of these words. If you are the holder or assignee of
a tradename or trademark, attach Declaration of Tradename Holder form.
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Name. The name of the Corporation is Central Arizona Transfer, Inc. |
ARTICLE 2
The name cannot imply that the corporation it organized for any purpose other
than the initial business indicated in this article.
The Corporation initially intends to conduct the business of
non-hazardous solid waste management
ARTICLE 3
The total number of authorized shares cannot be Zero or Not Applicable.
The Corporation shall have authority to issue 1,000 Shares of Common
Stock.
ARTICLE 4
May be in care of the statutory agent.
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Known Place of Business. (In Arizona) |
The street address of the known place of business of the Corporation is:
15880 N Greenway-Hyden Loop, Suite 100
Scottsdale, AZ 85260
ARTICLE 5
The agent must provide both a physical and mailing address. If statutory agent has a P.O. Box, then
they must also provide a physical description of their street address/location. The agent must
sign the Articles or provide a consent to acceptance of the appointment.
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Statutory Agent. (in Arizona) |
The name and address of the statutory agent of the Corporation is:
C T Corporation System
3225 North Central Avenue
Phoenix, Arizona 85012
1076227
PAID
95-9-2-05
# 10128395
DO NOT PUBLISH THIS SECTION
A minimum of 1 director is required.
The initial board of directors shall consist of 3 director(s). The name(s) and address(es)
of the person(s) who is(are) to serve as the director(s) until the first annual meeting of
shareholders or until his(her)(their) successor(s) is(are) elected and qualifies is(are):
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Name:
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Donald W. Slager
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Thomas P. Martin |
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Address:
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15880 N Greenway-Hayden Loop, Suite 100
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15880 N Greenway-Hayden Loop, Suite 100 |
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City, State, Zip:
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Scottsdale, AZ 85260
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Scottadale, AZ 85260 |
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Name:
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James E. Gray |
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Address:
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15880 N Greenway-Hayden Loop, Suite 100 |
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City, State, Zip:
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Scottsdale, AZ 85260 |
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The number of persons to serve on the board of directors thereafter shall be fixed by
the Bylaws. |
ARTICLE 7
A minimum of 1 incorporator is required. All incorporators must sign both the
Articles of Incorporation and the Certificate of Disclosure.
The name(s) and address(es) of the incorporator(s) is (are):
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Name:
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Jo Lynn White |
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Address:
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15880 N Greenway-Hayden Loop, Suite 100 |
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City, State, Zip:
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Scottsdale,AZ 85260 |
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All powers, duties and responsibilities of the incorporators shall cease at the time of
delivery of these Articles of Incorporation to the Arizona Corporation Commission.
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Indemnification of Officers, Directors, Employees and Agents. |
The Corporation shall indemnify any person who incurs expenses or liabilities by reason of the fact
he or she is or was an officer, director, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust or other enterprise. This indemnification shall be mandatory in
all circumstances in which indemnification is permitted by law.
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Limitation of Liability. |
To the fullest extent permitted by the Arizona Revised Statutes, as the same exists or may
hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for any action taken or any Failure to take any action as a
director. No repeal, amendment or modification of this article, whether direct or indirect, shall
eliminate or reduce its effect with respect to any act or omission of a director of the Corporation
occurring prior to such repeal, amendment or modification.
DO NOT PUBLISH THIS SECTION
Phone and fax numbers are optional
The agent must consent to the appointment by executing the convent.
The Articles must be accompanied by a Certificate of Disclosure, executed within 30 days
of delivery to the Commission, by all incorporation.
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EXECUTED this 26th day of August, 2005 by all of the incorporators, |
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Signed: |
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/s/ Jo Lynn White |
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Jo Lynn White |
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[Print Name Here]
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[Print Name Here] |
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PHONE(480) 627-2700
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FAX (480)627-7115 |
Acceptance of Appointment By Statutory Agent
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The undersigned hereby acknowledges and accepts the appointment as statutory agent of the
above-named corporation effective this 26th day of August, 2005. |
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Signed
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/s/ Maria Ozaeta
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Maria Ozaeta |
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Vice President |
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[Print Name Here] |
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C T Corporation System
[If signing on behalf of a company serving
as statutory agent, print company name here]
ARIZONA CORPORATION COMMISSION
CORPORATIONS DIVISION
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Phoenix
Address:
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1300 West
Washington
Phoenix,
Arizona
85007-2929
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Tucson Address:
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400 West
Congress Tucson,
Arizona
85701-1347 |
PROFIT
CERTIFICATE OF DISCLOSURE
A.R.S. §10-202.D
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Central Arizona Transfer, Inc. |
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EXACT CORPORATE NAME |
A. Has any person serving either by election or appointment
as officer, directors, trustee, incorporator and persons controlling
or holding over 10% of the
issued and outstanding common shares or 10% of my other proprietary, beneficial or membership
interest in the corporation:
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Been convicted of a felony involving a transaction in securities, consumer fraud or
antitrust in any state or federal jurisdiction within the seven-year period immediately
preceding the execution of this Certificate? |
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Been convicted of a felony, the essential elements of which consisted of fraud,
misrepresentation, theft by false pretenses, or restraint of trade or
monopoly in any state or federal jurisdiction within the seven-year period immediately
preceding the execution of this Certificate? |
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Been or are subject to an injunction, judgment,
decree or permanent order of any state or federal court entered
within the seven-year period immediately
preceding the execution of this Certificate wherein such injunction, judgment, decree or
permanent order: |
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Involved the violation of fraud or registration provisions of the securities laws of
that jurisdiction?: or |
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Involved the violation of the consumer fraud laws of that
jurisdiction?: or |
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Involved the violation of the antitrust or restraint of trade laws of that
jurisdiction? |
Yes o No þ
B. IF YES,
the following information MUST be attached:
1. |
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Full name, prior names(s) and
aliases, if used. |
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Full birth name. |
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Present home address. |
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Prior addresses (for immediate
preceding 7-year period). |
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Date and location of birth. |
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Social Security number. |
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The nature and description of each conviction or judicial
action,
date and location, the court and
public agency involved and file or
cause number of case. |
C. |
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Has any person serving an officer, director, trustee or incorporator of the corporation
served in any such capacity or held or controlled over 20% of the issued and outstanding
common shares, or 20% of any other proprietary, beneficial or membership interest in any other
corporation which has been placed in bankruptcy, receivership or had
its charter revoked, or
administratively or judicially dissolved by any state or jurisdiction? |
Yes
o No þ
IF YOUR
ANSWER TO THE ABOVE QUESTION IS YES, YOU MUST ATTACH THE FOLLOWING INFORMATION
FOR EACH CORPORATION:
1. |
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Name and address of the corporation. |
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Full name (Including
aliases) and address of each person involved. |
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State(s) in which the Corporation: (a) Was
incorporated. (b)
Has transacted business. |
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Dates of corporate operation. |
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Date and case number of Bankruptcy or date of revocation/administrative
dissolution. |
D. The
fiscal year end adopted by the corporation is December.
Under penalties of law, the undersigned incorporator(s) officer(s)
declare(s) that I(we) have
examined this Certificate, including any attachments, and to the best of my(our) knowledge and
belief it is true, correct and complete, and hereby declare as
indicated above. THE SIGNATURE(S) MUST
BE DATED WITHIN THIRTY (30) DAYS OF THE DELIVERY DATE.
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By:
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/s/ Jo Lynn White
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BY |
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PRINT NAME
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Jo Lynn White
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PRINT NAME |
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TITLE
Incorporator |
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DATE
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8/26/05
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TITLE
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DATE |
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DOMESTIC
CORPORATIONS: ALL INCORPORATORS MUST SIGN THE INITIAL CERTIFICATE OF
DISCLOSURE. If
within sixty days, any person becomes an officer, director, trustee
or person controlling or holding
over 10% of the issued and outstanding shares or 10% of any other proprietary, beneficial, or
membership interest in the corporation
and the person was not included in this disclosure, the
corporation must file an AMENDED certificate signed by at least one
duly authorized officer of
the corporation.
FOREIGN CORPORATIONS: MUST BE SIGNED BY AT LEAST ONE DULY AUTHORIZED OFFICER OF THE
CORPORATION.
CF: 0022-Business Corporations
Rev: 04/04
exv3w372
Exhibit 3.372
BYLAWS
OF
CENTRAL ARIZONA TRANSFER, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at such
location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or
for any other purpose shall be held at such time and place, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meetings the stockholders shall elect Directors in accordance with
Section 1 of Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten (10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of Incorporation, as
the same may be amended from time to time, the holders of a majority of the capital stock issued
and outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty (30) days (or any shorter
period required by law), or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or these
Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted
on or after eleven (11) months from its date, unless such proxy provides for and, applicable state
law allows for, a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days (or
any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required by Section 6 of
this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board of
Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders shall be
called to order and thereafter chaired by the Chairman of the Board of Directors if there is one;
or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if
the Chairman of the Board and the President are unavailable, such other officer of the Corporation
or such stockholder as may be appointed by the Board of Directors. The Corporations Secretary
shall act as secretary of each meeting of the stockholders; in the Secretarys absence, the
chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary
for the meeting. Absent a showing of bad faith on his part, and subject to any state law
restrictions or requirements, the chairman of a meeting shall, among other things, have absolute
authority to fix the period of time allowed for the registration of stockholders and the filing of
proxies, to determine the order of business to be conducted at such meeting and to establish
reasonable rules for expediting the business of the meeting (including any informal, or question
and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who shall serve one-year terms,
consisting of not less than one (1) nor more than nine (9) directors, the exact number of directors
to be determined from time to time by resolution adopted by the affirmative vote of a majority of
the directors then in office. A director shall hold office until the next Annual Meeting and until
his successor shall be elected and shall qualify, subject, however, to prior death,
3
resignation, retirement, disqualification or removal from office. Directors of the Corporation may
be removed from the Board of Directors, with or without cause, subject only to limitation provided
by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be
filled by a majority of the directors then in office, even if less than a quorum, or by a sole
remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by
these Bylaws, as the same may be amended from time to time, directed or required to be exercised or
done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular
and special, either outside of or within the state of incorporation. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there is one, the President or any two (2) directors. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile or
telegram, not less than twenty-four (24) hours before the date of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or
these Bylaws, as the same may be amended from time to time, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may be taken without a
meeting, if all the members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their reasonable
out-of-pocket expenses incurred in connection with their attendance at Board meetings, and shall
receive such other compensation as maybe determined by the Board of Directors from time to time by
majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law, no
contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization
in which one or more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of Directors or committee thereof
which authorizes the contract or transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or the committee, and
the Board of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or
5
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors
and shall, at a minimum, include a President and a Secretary. The Board of Directors, in its
discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting held after
each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors. The salaries and any bonuses or other compensation of all officers of the Corporation
shall be fixed by the Board of Directors. No officer shall be prevented from receiving a salary by
reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the President or any Vice
President, and any such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there is one, shall preside at all meetings of the stockholders and of the Board of
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Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of Directors,
have general supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in the event
of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the
Executive Vice President, or if there is no Executive Vice President, the Vice President or the
Vice Presidents if there are more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or books to be kept
for that purpose; the Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board of Directors or President,
under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the Board of Directors,
and if there is no Assistant Secretary, then either the Board of Directors or the President may
choose another officer to cause such notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may
7
give general authority to any other officer to affix the seal of the Corporation and to attest the
affixing by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors,
the Chairman of the Board of Directors, the President, any Vice President, if there are any
appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his disability
or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board
of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other officer of the
8
Corporation the power to choose such other officers and to prescribe their respective duties
and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by the President or any Vice
President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than
the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed
by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney lawfully constituted in writing and upon
the surrender of the certificate therefor, which shall be canceled before a new certificate shall
be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action (unless a greater or lesser period is
9
required by applicable state law). A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as the same may be amended from time to time, if
any, may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the Corporation,
which shall have inscribed thereon the name of the Corporation, and the state and year of its
organization. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and include
all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person (a) did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, (b) with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or another enterprise,
or on information supplied to him by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term another enterprise as used in this
Section 4 of this Article VIII shall mean any other corporation or any partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the
12
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may
be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification of the persons
specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by
law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation
has the power or obligation to indemnify under the provisions of the applicable state law of the
state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
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Section 9. Survival of Indemnification and Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations Certificate
of Incorporation shall be deemed to refer to its articles or certificate of incorporation and all
and any amendments thereto as of any given time on file with the applicable state office of agency
(or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall in all
respects be considered senior and superior to these bylaws, with any inconsistency to be resolved
in favor of the Certificate or applicable state law, as the case may be, and the Bylaws shall be
deemed to be amended automatically from time to time to eliminate any such inconsistencies which
may then exist.
15
exv3w373
Exhibit 3.373
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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FILED JUL 05 1989 |
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Date Received JUN 29 1989 |
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Administrator |
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MICHIGAN DEPT OF COMMERCE |
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Corporation & Securities Bureau |
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EFFECTIVE DATE:
CORPORATION IDENTIFICATION NUMBER 386-012
ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned
corporation executes the following Articles:
Article I
The name of the corporation is:
CENTRAL SANITARY LANDFILL, INC.
Article II
The purpose or purposes for which the corporation is organized is to engage in any activity within
the purposes for which corporations may be organized under the Business Corporation Act of
Michigan.
Operating a landfill and any other business not prohibited by Act 284 of
P.A. of 1972.
Article III
The total authorized capital stock is:
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Common Shares 50,000 Par Value Per Share $ 1.00 |
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Preferred Shares Par Value Per Share $ |
and/or shares without par value as follows:
2. |
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Common Shares Stated Value Per Share $ |
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Preferred Shares Stated Value Per Share $ |
3. |
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A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: |
Article IV
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The address of the registered office is: |
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2545 Amy School Road, Pierson
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, Michigan
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49339 |
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(Street Address)
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(City) |
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(ZIP Code) |
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2. |
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The mailing address of the registered office if different than above: |
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P. O. Box 168, Pierson
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, Michigan
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49339 |
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(P.O. Box)
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(City) |
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(ZIP Code) |
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3. |
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The name of the resident agent at the registered office is: James L. McCormick |
Article V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
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Name
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Residence or Business Address |
James L. McCormick
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2545 Amy School Road, Pierson, MI 49339 |
Use space below for additional Articles or for continuation of previous Articles. Please
identify any Article being continued or added. Attach additional pages if needed.
I (We), the incorporator(s) sign my [ILLEGIBLE] name(s) this 28th day of June, 1989.
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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FILED FEB 4 1991 [ILLEGIBLE]
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Date Received FEB 4 1991 |
EFFECTIVE DATE:
CORPORATION IDENTIFICATION NUMBER
RESTATED ARTICLES OF INCORPORATION
OF
CENTRAL SANITARY LANDFILL, INC.
The undersigned corporation executes these Restated Articles of
Incorporation pursuant to the provisions of Act 284, Public Acts of 1972, as amended,
and as the same may be further amended and in effect from time to time (Michigan
Business Corporation Act).
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The present name of the corporation is Central
Sanitary Landfill, Inc. |
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The corporation identification number (CID) assigned
by the Bureau is: 386-012. |
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All former names of the corporation are: None. |
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The date of filing the original Articles of
Incorporation was July 5, 1989. |
The following Restated Article of Incorporation supersede the Articles of
Incorporation as amended and shall be the Articles of Incorporation for the
corporation:
ARTICLE I
The name of the corporation is CENTRAL SANITARY LANDFILL, INC.
ARTICLE II
The purpose of the corporation is to engage in any one or more lawful acts or activities
within the purposes for which a corporation may be formed under the Michigan Business Corporation
Act.
ARTICLE III
The total authorized capital stock of the corporation is Fifty Thousand (50,000) shares of
common stock with a par value of One Dollar ($1) per share, all of one class.
ARTICLE IV
The street address of the current registered office of the corporation is 2545 Amy School
Road, Pierson, Michigan 49339.
The mailing address of the corporations current registered office is P.O. Box 168, Pierson,
Michigan 49339.
The name of the current resident agent at the registered office is James L. McCormick.
ARTICLE V
When a compromise or arrangement or a plan of reorganization of the corporation is
proposed between the corporation and its creditors or any class of them or between the corporation
and its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of the corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of creditors
or of the shareholders or class of shareholders to be affected by the proposed compromise or
arrangement or reorganization, to be summoned in such manner as the court directs. If a majority
in number representing three-fourths in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise or arrangement or
a reorganization, agree to a compromise or arrangement or a reorganization of the corporation as a
consequence of the compromise or arrangement, the compromise or arrangement and the
reorganization, if sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on the corporation.
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ARTICLE VI
Any action required or permitted by the Michigan Business Corporation Act, these
Articles, or the bylaws of the corporation to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without a vote, if consents
in writing, setting forth the action so taken, are signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote on the action were present and voted. The
written consents shall bear the date of signature of each shareholder who signs the consent. No
written consents shall be effective to take the corporate action referred to unless, within 60 days
after the record date for determining shareholders entitled to express consent to or to dissent
from a proposal without a meeting, written consents signed by a sufficient number of shareholders
to take the action are delivered to the corporation. Delivery shall be to the corporations
registered office, its principal place of business, or an officer or agent of the corporation
having custody of the minutes of the proceedings of its shareholders. Delivery made to a
corporations registered office shall be by hand or by certified or registered mail, return receipt
requested. Prompt notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to shareholders who have not consented in writing.
ARTICLE VII
The corporation shall indemnify any director of the corporation who was or is a party or
is threatened to be made a party to any threatened, pending, or completed action, suit, or
proceeding by reason of the fact that he or she is or was a director, or is or was serving at the
request of the corporation in another capacity, to the fullest extent permitted (in the absence of
rights granted under articles of incorporation, bylaws, or a contractual agreement) by the
Michigan Business Corporation Act. The corporation may further indemnify directors, and may
indemnify persons who are not directors, to the extent authorized by bylaw, resolution of the
board of directors, or contractual agreement authorized by the board of directors. A change in the
Michigan Business Corporation Act, these Articles, or the bylaws that reduces the scope of
indemnification shall not apply to any action or omission that occurs before the change.
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ARTICLE VIII
A director of the corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for a breach of fiduciary duty as a director, except that a
directors liability is not limited for:
(1) a breach of the directors duty of loyalty to
the corporation or its shareholders;
(2) an act or omission not in good faith or that
involve intentional misconduct or knowing violation of
law;
(3) a violation of Section 551(1) of the Michigan
Business Corporation Act, which section relates to the
making of unlawful dividends, distributions, or loans;
or
(4) a transaction from which the director
derived an improper personal benefit.
If the Michigan Business Corporation Act is amended to further eliminate or limit the
liability of a director, then a director of the corporation (in addition to the circumstances in
which a director is not personally liable as set forth in the preceding paragraph) shall, to the
fullest extent permitted by the Michigan Business Corporation Act, as so amended, not be liable to
the corporation or its shareholders. An amendment to or modification or repeal of this Article
shall not increase the liability of any director of the corporation for or with respect to any act
or omission that occurred before the amendment, modification or repeal.
This Article applies only to acts or omissions and to breaches of fiduciary duty occurring
after this Article became effective.
ARTICLE IX
The corporation may amend or repeal any provision contained in these Articles and add
Articles in the manner prescribed by statute.
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These Restated Articles of Incorporation were duly adopted on the 18 day of November,
1990, in accordance with the provisions of Section 642 of the Act. These Restated Articles of
Incorporation restate, integrate, and further amend the provisions of the Articles of Incorporation
and were duly adopted by the shareholders of the corporation. The necessary number of shares as
required by statute were voted in favor of these Restated Articles. |
Signed this 18 day of November, 1990.
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CENTRAL SANITARY LANDFILL, INC. |
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By
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/s/ James L. McCormick
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Its President |
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exv3w374
Exhibit 3.374
BY-LAWS
OF
CENTRAL SANITARY LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be Central Sanitary Landfill, Inc., c/o USA Waste Services, Inc., 1001 Fannin, Suite 4000, Houston,
Texas 77002.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Michigan as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or without
the State of Michigan, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect directors
and transact such other business as may properly be brought before the meeting. Written notice of
each annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Special meetings of stockholders may be called by
the President or the Board of Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as originally noticed.
If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, (i) any question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat and (ii) each stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after
three (3) years from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholders
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors consisting of not
less than one director, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors then in office. At each
annual meeting of stockholders beginning with the first, successor directors shall be elected. Each
director shah hold office until the ensuing meeting and until such directors successor is elected
and qualified or until such directors earlier death, resignation, or removal.
Directors of the Corporation may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Corporations
Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by
the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of Michigan. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the President or any two directors. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the time of the meeting, by telephone, electronic facsimile or
telegram not less than twenty-four (24) hours before the time of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Corporations Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Corporations
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Corporations Certificate of Incorporation or these By-Laws, members of
the Board of Directors of the Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or such committee by means of a
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required.
Section 9. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The offices of the Corporation shall be chosen by the
Board of Directors and shall be a President and a Secretary. The Board of Directors, in its
discretion, may also choose one Treasurer and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Corporations Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not be stockholders of
the Corporation nor need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held after
each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries and other compensation of
all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. The President. The President shall be the chief executive officer
and the chief operating officer of the Corporation, shall have general direction of the business
and affairs of the Corporation and general supervision over its several officers, subject, however,
to the control of the Board of Directors and shall see that all orders and resolutions of the Board
of Directors are carried into effect. The President may sign, with the Secretary or Assistant
Secretary, certificates representing shares of stock of the Corporation. The President shall
execute and deliver, in the name and on behalf of the Corporation, (i) contracts or other
instruments authorized by the Board of Directors and (ii) contracts or instruments in the usual and
regular course of business except in cases when the execution and delivery thereof shall be
expressly delegated or permitted by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation, and, in general, shall perform all duties incident to the office of
President and such other duties as from time to time may be assigned to him by the Board of
Directors or as are prescribed by these Bylaws.
Section 5. Vice Presidents. Vice Presidents, if there be any, shall perform
such duties and may exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors. The Vice President may sign certificates of stock of the
Corporation. In the absence or disability of the President, a Vice President may preside at
meetings of the stockholders and the Board of Directors.
Section 6. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors or the President. If
the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the
stockholders and special meetings
of the Board of Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 7. Treasurer. The Treasurer, if there be one, shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation.
Section 8. Assistant Secretaries. Except as may be otherwise provided in these
By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the Secretary or in the event
of the Secretarys disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 9. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer.
Section 10. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or a Vice President and (ii) by the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owners
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, such notice may be given by mail, addressed to such director, member of
a committee or stockholder, at his address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given personally or by
electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Corporations Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal, if there shall be one, shall be
in such form as the Board of Directors may prescribe.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such persons conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that such person did not
act in good faith and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer, of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case
may be. Such determination shall be made (i) by the Board of Directors by a majority vote of
the directors who are not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) if there are no such directors or if such directors so direct, by independent legal
counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director
or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe such
persons conduct was unlawful, if such persons action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The term another enterprise as used in this Section 4 of this Article VIII shall mean
any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Michigan for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 of this Article VIII shall be
given to the Corporation promptly upon the filing of such application. If successful, in whole or
in part, the director or officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding may be
required by the Board of Directors to be paid (upon such terms and conditions, if any, as the Board
deems appropriate) by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article
VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in a persons official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 of Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Michigan, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against such person and incurred by him in any such capacity, or arising out of such
persons status as such, whether or not the Corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references
to the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors and officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this Article VIII with respect to the resulting
or surviving corporation as such indemnification relates to such persons acts while serving in any
of the foregoing capacities, of such constituent corporation, as such person would have with
respect to such constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to fines shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to serving at the request of the Corporation
shall include any service as a director or officer of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the
Corporation as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Except as otherwise provided in the Corporations Certificate of
Incorporation, these By-Laws may be altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice
of such meeting of stockholders or Board of Directors as the case may be. Except as otherwise
provided in the Corporations Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w375
Exhibit 3.375
ARTICLES OF ORGANIZATION
OF
CENTRAL VIRGINIA PROPERTIES, LLC
I.
The name of the Limited Liability Company is CENTRAL VIRGINIA PROPERTIES, LLC.
This 23rd day of February, 2004.
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By: |
/s/ Tim M. Benter
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ORGANIZER |
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Tim M. Benter
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(PRINT NAME) |
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SECRETARY OF STATE |
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2004 FEB 24 P2:45 |
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CORPORATIONS DIVISION |
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OFFICE OF SECRETARY OF STATE |
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CORPORATIONS DIVISION |
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315 West Tower, #2 Martin Luther King, Jr. Drive
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WARREN RARY |
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Atlanta, Georgia 30334-1530
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Director |
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(404) 656-2817 |
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Registered agent, officer, entity status information via the Internet
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QUINTILIS B. ROBINSON |
CATHY COX
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http://www.sos.state.ga.us/corporations
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Deputy Director |
Secretary of State
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TRANSMITTAL INFORMATION
GEORGIA LIMITED LIABILITY COMPANY |
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DO NOT WRITE IN SHADED AREA SOS USE ONLY
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DOCKET #
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PENDING #
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DOCKET
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AMOUNT
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CHECK/ |
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CODE
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FILED
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TYPE CODE
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EXAMINER
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JURISDICTION (COUNTY) CODE |
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NOTICE TO APPLICANT: PRINT PLAINLY OR TYPE REMAINDER OF THIS FORM
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1. |
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LLC Name Reservation Number |
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Central Virginia Properties, LLC |
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LLC Name |
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2.
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Tim M. Benter
954-769-2400 |
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Applicant/Attorney
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110 S.E. 6th Street, 28th Floor |
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Address |
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Fort Lauderdale
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33301 |
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110 S.E. 6th Street, 28th Floor |
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Principal Office Mailing Address |
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Fort Lauderdale
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Corporation Process Company |
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Name of Registered Agent in Georgia |
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c/o Corporation Process Company, 180 Cherokee Street, N.E. |
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Registered Office Street Address in Georgia |
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Marietta
Cobb
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Name and Address of each organizer (Attach additional sheets if necessary) |
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Tim M. Benter
110 S.E. 6th Street, 28th Floor Fort Lauderdale
FL
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Organizer
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State
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Organizer
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6.
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Mail or deliver to the Secretary of State, at the above address, the following: |
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1) This transmittal form |
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2) Original and one copy of the Articles of Organization |
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3) Filing fee of $100.00 payable to Secretary of State. Filing fees are NON-refundable. |
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/s/ Tim M. Benter
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February 23, 2004 |
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Authorized Signature Tim M. Benter
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Date |
Member, Manager Organizer or Attorney-in-fact (Circle one) |
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exv3w376
Exhibit 3.376
OPERATING AGREEMENT
FOR
CENTRAL VIRGINIA PROPERTIES, LLC
THIS OPERATING AGREEMENT (the Agreement) of CENTRAL VIRGINIA PROPERTIES, LLC, a Georgia
limited liability company (the Company), is made and entered into on February 24, 2004, by
Republic Services of Georgia, Limited Partnership (RS of GA). The Company was organized as a
limited liability company under the Official Code of Georgia Annotated (the Law). Certain defined
terms used in this Agreement are set forth in Schedule I (Schedule of Definitions) attached
hereto and made a part hereof. In consideration of the mutual covenants and agreements contained in
this Agreement and other good and valuable consideration, and intending to be legally bound hereby,
the undersigned hereby agrees as follows:
I. PURPOSES
The purposes of the Company are to engage in and do any act in furtherance of any and all
lawful businesses for which limited liability companies may be formed under the Law.
II. ORGANIZATIONAL MATTERS
Section 2.1 Formation. The Company was formed pursuant to the Law upon the filing of
Certificate of Organization (Certificate) The rights and obligations of the Members shall be as
provided under the Law, except as otherwise provided in the Certificate and this Agreement. The
Members agree to each of the provisions of the Certificate. It is hereby agreed, acknowledged and
confirmed that Tim M. Benter was the organizer for purposes of executing and filing the
Certificate, and the Certificate and such execution and filing of same are hereby ratified,
approved and authorized.
Section 2.2 Principal Place of Business. The principal place of business of the
Company shall be 110 S.E. 6th Street, 28th Floor, Ft. Lauderdale, Florida 33301, or
such other address as may be established by the Members.
Section 2.3 Duration. The existence of the Company shall continue in perpetuity,
unless
the Company is sooner dissolved in accordance with the Law.
III. MEMBERS AND CAPITAL STRUCTURE
Section 3.1 Units Representing Membership Interests. The Interests of Members in the
Company are divided into and represented by Units. Each Members respective number of Units is set
forth in Exhibit A as the same shall be amended from time to time to reflect any changes
in the number of Units of Members. The Members agree that each Unit shall entitle the Member
possessing such Unit to:
(a) Equal governance rights per Unit and to one vote per Unit on matters on which the Members
may vote under the Certificate, this Agreement and/or the Law;
(b) An equal proportionate share per Unit of the Companys net income, gains, losses,
deductions and credits; and
(c) An equal proportionate share per Unit of amounts distributed to the Members in respect of
their Interests upon dissolution of the Company.
Unless otherwise approved by the Members, the Company will not issue certificates representing
Units, but at the written request of a Member, the Company will provide a certified statement
setting forth the total number of Units issued and outstanding and the number of Units issued to
the requesting Member, as of the date of the statement. It is hereby agreed, acknowledged and
confirmed that RS OF GA is, and has been admitted as the sole member of the Company, and that RS
OF GAs Units as set forth in Exhibit A have been duly issued, and such admission and
issuance are hereby ratified, approved and authorized.
Section 3.2 Capital Contributions. The initial Capital Contribution to the Company of
the sole Member is set forth on Exhibit A.
Section 3.3 Additional Capital. The Member shall not be obligated to make any Capital
Contributions other than its initial Capital Contribution.
Section 3.4 Capital Accounts.
(a) An individual capital account (the Capital Account) shall be established and maintained
on behalf of each Member, including any Additional Member who shall hereafter receive an Interest,
in the manner provided by Treasury Regulations Section 1.704-l(b)(2)(iv).
(b) Except as is specifically provided otherwise in this Agreement, no Member shall have any
liability or obligation to restore a negative or deficit balance in such Members Capital Account.
IV. MEETINGS OF MEMBERS
Section 4.1 Annual Meetings. Annual meetings of the Members shall be held no later
than ninety (90) days following the close of the Companys fiscal year at the principal offices of
the Company, or on such other date or at such other place as may be designated by a Majority in
Interest of the Members.
Section 4.2 Special Meetings. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Member upon notice in
writing to the Company of the proposed meeting and the matters proposed to be acted upon.
Section 4.3 Notice of Meetings. The Company shall deliver or mail written notice
stating the date, time and place of any Members meeting and, in the case of a special Members
meeting or when otherwise required by law, a description of the purposes for which the meeting is
called, to each Member of record entitled to vote at the meeting, at such address as appears in
the records of the Company and at least five (5), but no more than sixty (60), days before the
date of the meeting.
Section 4.4 Waiver of Notice. A Member may waive notice of any meeting, before or
after the date and time of the meeting as stated in the notice, by delivering a signed waiver to
the Company for inclusion in the minutes. A Members attendance at any meeting, in person or by
proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the Member
at the beginning of the meeting objects to holding the meeting or transacting business at the
meeting, and (b) waives objection to consideration of a particular matter at the meeting that is
not within the purposes described in the meeting notice, unless the Member objects to considering
the matter when it is presented.
Section 4.5 Voting Rights. Except as otherwise provided herein, on all matters that
come before the Members for a vote, each Member shall be entitled to one vote for each Unit owned
by such Member. The presence of a Majority in Interest of the Members shall constitute a quorum for
any meeting of the Members. Except as otherwise provided in this Agreement, approval of any action
by Majority in Interest of the Members requires the approval of a Majority in Interest of the
Members.
Section 4.6 Action by Consent. Any action required or permitted to be taken at a
Members meeting may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the Members. The written consent or consents shall be
delivered to the Company for inclusion in its minutes.
Section 4.7 Presence. Any or all Members may participate in any annual or special
Members meeting by, or through the use of, any means of communication by which all Members
participating may simultaneously hear each other during the meeting. A Member so participating is
deemed to be present in person at the meeting.
Section 4.8 Conduct of Meetings. At any Members meeting, the Members with the
approval of a Majority in Interest of the Members shall appoint a Member to preside at the meeting
and shall appoint a person to act as secretary of the meeting. The secretary of the meeting shall
prepare minutes of the meeting which shall be placed in the minute book of the Company.
V. MANAGEMENT AND OFFICERS
Section 5.1 Governance. The Company shall be managed by its members.
Section 5.2 Officers. The Company shall have a President, Vice President, Secretary,
Treasurer and such other officers as the Member may determine and appoint. Such officers of the
Company shall have the authority to sign contracts and execute documents that obligate the Company.
The sole Member shall be an officer of the Company, holding each of the offices and titles set
forth above, except to the extent that the sole Member has appointed another person or Entity to
such office.
VI. ACCOUNTING AND RECORDS
Section 6.1 Records and Accounting. The books and records of the Company shall be
kept, and the financial position and the results of its operations recorded, in accordance with
generally accepted accounting principles consistently applied (GAAP). The books and records of
the Company shall reflect all Company transactions and shall be appropriate and adequate for the
Companys business. The fiscal year of the Company for financial reporting and for federal income
tax purposes shall be the calendar year.
Section 6.2 Access to Accounting Records. All books and records of the Company
shall be maintained at any office of the Company or at the Companys principal place of business,
and each Member, and his, her, or its duly authorized representative, may inspect and copy such
books and records upon reasonable notice and request, during normal business hours.
Section 6.3 Annual Tax Information. The Company shall use its best efforts to deliver
to each Member within 60 days after the end of each fiscal year all information necessary for the
preparation of such Members federal and state income tax returns. The Company shall also use its
best efforts to prepare, within 60 days after the end of each fiscal year, a financial report of
the Company for such fiscal year containing a balance sheet as of the last day of the year then
ended, an income statement for the year then ended, a statement of sources and applications of
funds, and a statement of reconciliation of the Capital Accounts of the Members.
VII. ALLOCATIONS AND DISTRIBUTIONS
Section 7.1 Allocation of Net Income, Net Loss or Capital Gains. The net income, net
loss, or capital gains of the Company for each fiscal year of the Company shall be allocated to
the Members, pro rata in accordance with their respective Percentage Interests.
VIII. DISSOLUTION AND WINDING UP
Section 8.1 Dissolution. The Company shall be dissolved and its affairs wound up on
the first of the following to occur:
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A unanimous determination by the Members that the Company shall be dissolved; or |
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At such earlier time as may be provided by applicable law. |
Section 8.2 Winding Up. Upon dissolution, the Members shall proceed to wind up and
liquidate the business and affairs of the Company, and the Company may only carry on business that
is appropriate to wind up and liquidate the business and affairs of the Company, including the
following: (a) collecting the Companys assets, (b) disposing of properties that will not be
distributed in kind to Members, (c) discharging or making provision for discharging liabilities,
(d) distributing the remaining property among the Members, and (e) doing every other Law necessary
to wind up and liquidate the business and affairs of the Company. The Members shall follow the
procedure for disposing of known claims set forth in the Law and shall publish notice of the
dissolution of the Company pursuant to the Law.
Section 8.3 Distribution of Assets. Upon the winding up of the Company, the assets
shall be distributed as follows:
(a) To creditors, including Members who are creditors to the extent permitted by law, in the order
of priority as provided by law to satisfy the liabilities of the Company whether by payment or by
the establishment of adequate reserves;
(b) To Members to repay any loans to the Company;
(c) To Members of the Company in respect of their share of the profits and other compensation by
way of income on their Capital Contributions to the extent each such Member has a positive balance
in his Capital Account as provided in Treasury Regulation § 1.704-1 (b)(2)(ii)(b)(2); and
(d) To Members of the Company in respect of their Capital Contributions to the extent each such
Member has a positive balance in his Capital Account as provided in Treasury Regulation
§1.704-l(b)(2)(ii)(b)(2).
IX. AMENDMENTS
Section 9.1 Proposal of Amendments. Amendments to the Certificate and this Agreement
may be proposed in writing by any Member. Copies of any amendments proposed to be made shall be
sent to the Members.
Section 9.2 Approval of Amendments. A proposed amendment shall be voted upon at either
an annual meeting or a special meeting of the Members duly called for the purpose of voting on the
amendment. Such amendment shall be approved by a Majority in Interest of the Members.
X. MISCELLANEOUS
Section 10.1 Complete Agreement. This Agreement and the Certificate constitute the
complete and exclusive statement of agreement among the Members with respect to its subject
matter. This Agreement and the Certificate replace and supersede all prior agreements by and among
the Members or any of them. This Agreement and the Certificate supersede all prior written and
oral statements, and no representation, statement, or condition or warranty not contained in this
Agreement or the Certificate will be binding on the Members or have any force or effect
whatsoever.
Section 10.2 Governing Law. This Agreement and the rights of the parties under this
Agreement will be governed by, interpreted, and enforced in accordance with the laws of the State
of Georgia.
Section 10.3 Binding Effect; Conflicts. Subject to the provisions of this Agreement
relating to transferability, this Agreement will be binding upon and inure to the benefit of the
Members and their respective distributees, successors and assigns.
Section 10.4 Headings: Interpretation. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. The singular shall include the plural, and the
masculine gender shall include the feminine and neuter, and vice versa, as the context requires.
Section 10.5 Severability. If any provision of this Agreement is held to be illegal,
invalid, unreasonable, or unenforceable under the present or future laws effective during the term
of this Agreement, such provision will be fully severable; this Agreement will be construed and
enforced as if such illegal, invalid, unreasonable, or unenforceable provision had never comprised
a part of this Agreement; and the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, unreasonable, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid,
unreasonable, or unenforceable provision, there will be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, unreasonable, or unenforceable
provision as may be possible and be legal, valid, reasonable, and enforceable.
Section 10.6 Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will constitute one and
the same instrument. However, in making proof with respect to this Agreement, it will be necessary
to produce only one copy hereof signed by the party to be charged.
Section 10.7 Additional Documents and Laws. Each Member agrees to promptly execute
and deliver to the Company such additional documents, statements of interest and holdings,
designations, powers of attorney, and other instruments, and to perform such additional Laws, as
the Company may determine to be necessary, useful or appropriate to complete the organization of
the Company, effectuate, carry out and perform all of the terms, provisions, and conditions of
this Agreement and the transactions contemplated by this Agreement, and to comply with all
applicable laws, rules and regulations.
Section 10.8 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the Members and their respective successors and assigns
subject to the express provisions of this Agreement relating to successors and assigns. This
Agreement is expressly not intended for the benefit of any creditor of the Company or any other
third party. No creditor or other third party will have any rights, interest, or claims under the
Agreement or be entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
Section 10.9 Notices. Any notice to be given or to be served upon the Company or any
Member in connection with this Agreement must be in writing and will be deemed to have been given
and received when delivered to the address specified by the party to receive the notice. Such
notices will be given to a Member at the address that appears in the records of the Company. Any
Member or the Company may, at any time by giving five days, prior written notice to the other
Members and the Company, designate any other address in substitution of the foregoing address to
which such notice will be given.
Section 10.10 Title to Company Property. Legal title to all property of the Company
will be held and conveyed in the name of the Company.
Section 10.11 Reliance on Authority of Person Signing Agreement. In the event that a
Member is not a natural person, neither the Company nor any Member will (a) be required to
determine the authority of the individual signing this Agreement to make any commitment or
undertaking on behalf of such Person or to determine any fact or circumstance bearing upon the
existence of the authority of such individual, or (b) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this Agreement on behalf of such
Entity.
Section 10.12 No Remedies Exclusive. To the extent any remedies are provided herein
for a breach of this Agreement, the Certificate or the Law, such remedies shall not be exclusive
of any other remedies the aggrieved party may have, at law or in equity.
Section 10.13 Other Ventures. Each of the Members may engage, directly or indirectly,
in any other business venture or ventures of any nature and description, independently or with
others, and neither the Company nor any of the Members shall have any rights in and to any such
business ventures or the income or profits derived therefrom. The provisions of this section shall
apply to a Member both during the period of its membership in the Company and after withdrawal from
membership in the Company.
IN WITNESS WHEREOF, the undersigned sole Member of the Company has executed and agreed to this
Operating Agreement on February 24 , 2004.
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REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP |
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By: its General Partner REPUBLIC SERVICES OF GEORGIA GP, LLC |
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By: |
/s/ David A. Barclay
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David A. Barclay |
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Title: |
Vice President & Secretary |
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SCHEDULE I
TO THE OPERATING AGREEMENT
(SCHEDULE OF DEFINITIONS)
The terms used in this Agreement with their initial letters capitalized shall have, unless
the context otherwise requires or unless otherwise expressly provided in this Agreement, the
meanings specified in this Schedule I. Any term used but not defined in this Agreement shall have
the meanings set forth in the Law. The singular shall include the plural, and the masculine gender
shall include the feminine and neuter, and vice versa, as the context requires. When used in this
Agreement, the following terms shall have the meanings set forth below:
Law means the Official Code of Georgia Annotated, as the same is amended from time
to time.
Agreement means this Operating Agreement of the Company, as originally executed,
including all Schedules and Exhibits, and all of which may be amended from time to time.
Assignee means any assignee as that term is used in the Law, and includes any
transferee or recipient of a Transfer of any Unit or Units, or any portion thereof.
Code means the Internal Revenue Code of 1986, as amended. All references in this
Agreement to sections of the Code shall include any corresponding provision or provisions of any
succeeding law.
Entity means any association, corporation, general partnership, limited
partnership, limited liability partnership, limited liability company, joint stock association,
joint venture, firm, trust, business trust, cooperative, or foreign associations of like
structure.
Interest means the entire ownership interest of a Member in the Company at any
particular time, including the right of such Member to any and all benefits to which a Member may
be entitled as provided in this Agreement and under the Law, together with the obligations of such
Member to comply with all of the terms and provisions of this Agreement.
Majority in Interest of the Members means the Member(s) who hold a majority of the
outstanding Units. Majority in Interest of the remaining Members means those Members holding a
majority of the outstanding Units, excluding the Member in question and that Members Units. In
this regard, Unit(s) or any portion thereof that are the subject of an effective Transfer to an
Assignee not a Substitute Member shall not be considered outstanding Units.
Member or Members refers to the parties to this Agreement as indicated on
Exhibit A, and any Additional Members or Substitute Members.
Operating Agreement means this Agreement.
Percentage Interest means the percentage obtained by dividing the number of Units of
a Member by the total number of outstanding Units of all Members.
Principal Office means the principal place of business specified in Section 2.2.
Substitute Member means any individual or entity admitted as a Member pursuant to
Section 8.4.
Transfer means any assignment as that term is used in the Law, and includes any
gift, sale, exchange, assignment, conveyance, alienation or other transfer, whether voluntary or
involuntary, and includes any Transfer to a receiver, bankruptcy trustee judgment creditor,
lienholder, holder of a security interest, pledge or other encumbrance, and Transfer upon judicial
order or other legal process (such as a Transfer in connection with divorce proceedings).
Unit refers to a unit of measurement of a Members Interest as established in
Section 3.1. Whenever reference is made to Percentage Interest, a Unit may be converted into the
same by dividing a Members number of Units by the total of all Units outstanding. For voting and
other governance purposes, Unit(s) or any portion thereof that are the subject of an effective
Transfer to an Assignee not a Substitute Member shall not be considered outstanding Units.
EXHIBIT A
TO THE OPERATING AGREEMENT
NAMES OF MEMBERS; CAPITAL
CONTRIBUTIONS, AND UNITS OF MEMBERS
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Initial |
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Capital |
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Number |
Member |
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Contribution |
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of Units |
Republic Services of Georgia, |
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1.00 |
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1 |
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Limited Partnership, a Delaware limited
partnership |
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exv3w377
Exhibit 3.377
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ENDORSED |
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FILED |
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In the office of the Secretary of State |
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of the State of California |
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DEC - 9 1988 |
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MARCH FONG EU, Secretary of State |
ARTICLES OF INCORPORATION
OF
CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS
1. The
name of this Corporation is: CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS.
2. The
purpose of this Corporation is to engage in any lawful act or activity for which a
Corporation may be organized under the General Corporation Law of California, other than the
banking business, the trust company business, or the practice of a profession permitted to be
incorporated by the California Corporations Code.
3. The name and address in this State of this Corporations initial agent for the service of
process is: Donald W. Littlejohn, c/o LITTLEJOHN & WESTFALL & ABEL, Attorneys at Law, 519 Jay Street,
Colusa, California 95932.
4. This Corporation is authorized to issue only one class of shares, which shall be
designated common shares. The total authorized number of such shares which may be issued is
50,000 shares.
Dated: December 9, 1988
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/s/ Bill E. Charter, Jr.
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BILL E. CHARTER, JR. |
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I declare that I am the person who executed the above Articles of Incorporation and such
instrument is my act and deed.
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/s/ Bill E. Charter, Jr.
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BILL E. CHARTER, JR. |
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- 1 -
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ENDORSED |
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FILED |
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In the office of the Secretary of State |
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of the State of California |
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FEB - 5 1991 |
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MARCH FONG EU, Secretary of State |
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS
BILL E. CHARTER, JR. and WILLIAM E. CHARTER, SR. certify that:
1. They are the President and Secretary of CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS, a
California corporation.
2. The following amendment to the articles of incorporation of the corporation has been
duly approved by the board of directors of the corporation:
RESOLVED: That Article 4 of the Articles of Incorporation is amended to read as follows:
This Corporation is authorized to issue only one class of shares, which shall be designated
common shares. The total authorized number of such shares which may be issued is 5,000,000
shares.
3. The amendment was duly approved by the required
vote of shareholders in accordance with section 902 of the
California Corporations Code. The total number of outstanding shares entitled to vote with respect to the amendment was 15,000,
the favorable vote of a majority of such shares is required to
approve the amendment, and the number of such shares voting in
favor of the amendment equaled or exceeded the required vote.
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/s/
Bill E. Charter, Jr.,
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Bill E. Charter, Jr., |
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President |
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/s/ William E. Charter, Sr.,
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William E. Charter, Sr., |
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Secretary |
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Each of the undersigned declares under penalty of perjury that the statements contained in the
foregoing certificate are true and correct of his or her own knowledge, and that this declaration
was executed on January 23, 1991 at Colusa, California
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/s/
Bill E. Charter, Jr.,
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Bill E. Charter, Jr., |
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President |
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/s/ William E. Charter, Sr.,
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William E. Charter, Sr., |
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Secretary |
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CERTIFICATE OF AMENDMENT OF THE
ARTICLES OF INCORPORATION OF
CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS
A California Corporation
ROBERT V. COLE certifies that:
1. He is the President and Secretary, respectively, of CHARTER EVAPORATION RESOURCE RECOVERY
SYSTEMS, a California corporation.
2. Article 3 of the Articles of Incorporation of the corporation is hereby amended in its
entirety to read as follows:
4. The name and address in the State of California of this corporations initial agent for
service of process is: Robert V. Cole, 5275 Colt Street, Ventura, California 93003.
3. The amendment has been approved by the Board of Directors.
4. The amendment has been approved by the required vote of the shareholders in accordance with
section 902 of the California Corporations Code. The total number of outstanding shares entitled to
vote with respect to the amendment was Five Hundred Sixty Five Thousand (565,000), the favorable
vote of majority of such shares is required to approve the amendment and the number of such shares
voting in favor of the amendment was Five Hundred Sixty Five Thousand (565,000), thus exceeding the
required vote.
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DATED: May 18, 1994 |
/s/ Robert V. Cole
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ROBERT V. COLE, President |
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DATED: May 18, 1994 |
/s/ Robert V. Cole
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ROBERT V. COLE, Secretary |
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The undersigned declares under penalty of perjury that the matters set forth in the
foregoing Certificate are true and correct of his own knowledge and that this Certificate was
executed on the 18 day of May, 1994, at Ventura, County of Ventura,
California.
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/s/ Robert V. Cole
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ROBERT V. COLE |
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exv3w378
Exhibit 3.378
AMENDED AND RESTATED BYLAWS
OF
CHARTER EVAPORATION RESOURCE RECOVERY SYSTEMS
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting
2
during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
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meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, as the same may be amended from time to time or
limited by applicable state law, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board
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meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier
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resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall
7
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
8
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it
9
may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
10
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
11
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
12
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific
13
case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding
capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w379
Exhibit 3.379
ARTICLES
OF INCORPORATION
OF
LOGAN WASTE CONTROL, INC.
The undersigned, desiring to form a corporation for profit under Chapter 1701 of the Ohio
Revised Code, does hereby certify:
FIRST: The name of the corporation shall be Logan Waste Control, Inc.
SECOND: The place in Ohio where the principal office of the corporation is to be
located is the City of Plain City, County of Madison.
THIRD: The purpose for which the corporation is formed is to engage in any
lawful act or activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code.
FOURTH: The authorized number of shares of the corporation shall be 750, all of which
shall be common shares, each without par value.
FIFTH: The amount of stated capital with which the corporation will begin business
shall be $500.
SIXTH: The directors of the corporation shall have the power to cause the corporation
from time to time and at any time to purchase, hold, sell, transfer or otherwise deal with (A)
shares of any class or series issued by it, (B) any security or other obligation of the corporation
which may confer upon the
holder thereof the right to convert the same into shares of any class or series authorized by the
articles of the corporation, and (C) any security or other obligation which may confer upon the
holder thereof the right to purchase shares of any class or series authorized by the articles of
the corporation. The corporation shall have the right to purchase shares of any class or series
authorized by the articles of the corporation. The corporation shall have the right to repurchase,
if and when any shareholder desires to sell, or on the happening of any event is required to sell,
shares of any class or series issued by the corporation. The authority granted in this Article
Sixth of these articles shall not limit the plenary authority of the directors to purchase, hold,
sell, transfer or otherwise deal with shares of any class or series, securities, or other
obligations issued by the corporation or authorized by its articles.
SEVENTH: A director or officer of the corporation shall not be disqualified by his
office from dealing or contracting with the corporation as vendor, purchaser, employee, agent or
otherwise. No contract or transaction shall be void or voidable with respect to the corporation
for the reason that it is between the corporation and one or more of its directors or officers, or
between the corporation and any other person in which one or more of its directors or officers are
directors, trustees, or officers, or have a financial or personal interest, or for the reason that
one or more interested directors or officers participated in or voted at the meeting of the
directors
-2-
or a committee thereof which authorized such contract or transaction, if in any such case (A) the
material facts as to the relationship or interest of such director, officer or other person and as
to the contract or transaction are disclosed or are known to the directors or the committee, or
such members thereof as shall be present at any meeting at which action upon any such contract or
transaction shall be taken, and the directors or committee, in good faith reasonably justified by
such facts, authorized the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors constitute less than a quorum; or
(B) the material facts as to the relationship or interest of such director, officer or other person
and as to the contract or transaction are disclosed or known to the shareholders entitled to vote
thereon and the contract or transaction is specifically approved at a meeting of the shareholders
held for such purpose by the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the corporation held by persons not interested in the contract or
transaction; or (C) the contract or transaction is fair as to the corporation as of the time it is
authorized or approved by the directors, a committee thereof, or the shareholders. Common or
interested directors may be counted in determining the presence of a quorum at any meeting of the
directors, or of a committee thereof, which authorizes the contract or transaction.
-3-
EIGHTH: The directors of the corporation may adopt an amendment to the articles in
respect of any unissued or treasury shares of any class and thereby fix or change: the division of
such shares into series and the designation and authorized number of shares of each series; the
dividend rate; the dates of payment of dividends and the dates from which they are cumulative;
liquidation price; redemption rights and price; sinking fund requirements; conversion rights; and
restrictions on the issuance of shares of any class or series.
NINTH: No shareholder of the corporation shall have, as a matter of right, the
pre-emptive right to purchase or subscribe for shares of any class, now or hereafter authorized, or
to purchase or subscribe for securities or other obligations convertible into or exchangeable for
such shares or which by warrants or otherwise entitle the holders thereof to subscribe for or
purchase any such share.
TENTH: Notwithstanding any provision of the Ohio Revised Code requiring for any
purpose the vote, consent, waiver or release of the holders of shares of the corporation entitling
them to exercise two-thirds or any other proportion of the voting power of the corporation or of
any class or classes of shares thereof, such action, unless expressly provided otherwise by
statute, may be taken by the vote, consent, waiver or release of the holders of shares entitling
them to exercise not less than a majority of the voting power of the corporation or of such class
or classes.
-4-
IN WITNESS WHEREOF, I have hereunto signed my name this 22nd day of December, 1982.
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/s/ Donald J. Shuller
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Incorporator |
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ORIGINAL APPOINTMENT OF AGENT
The undersigned, being the sole incorporator of Logan Waste Control, Inc., hereby
appoints Phillip M. Kabealo, a natural person resident in the State of Ohio the statutory agent
upon whom any process, notice or demand required or permitted by complete address is:
7240 Industrial Parkway
City of Plain City
Madison County, Ohio 43064
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/s/ Donald J. Shuller
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Donald J. Shuller |
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Columbus, Ohio
December 22, 1982
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CERTIFICATE OF AMENDMENT
BY THE INCORPORATOR
(SEC. 1701.70 (A) R.C.)
TO ARTICLES OF
LOGAN WASTE CONTROL, INC. |
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APPROVED
By: AT
Date: 2/8/83
Amount: 35.00 |
I am the sole incorporator of the above-named corporation and do certify that
subscriptions to shares having not been received in such amount that the stated capital of such
shares is at least equal to the stated capital set forth in the articles as that with which the
corporation will begin business and that I have elected to amend article TENTH and add article
ELEVENTH to said articles as follows:
TENTH: Notwithstanding any provision of the Ohio Revised
Code requiring for any purpose the vote, consent, waiver or release of
the holders of shares of the corporation entitling them to exercise
two-thirds of any other proportion of the voting power of the
corporation or of any class or classes of shares thereof, except as
provided in Article ELEVENTH, such action, unless expressly provided
otherwise by statute, may be taken by the vote, consent, waiver or
release of the holders of shares entitling them to exercise not less
than a majority of the voting power of the corporation or of such class
or classes.
ELEVENTH: Notwithstanding any other provision of
these Articles to the contrary or any provision of the Ohio Revised
Code, the Corporation shall not issue, sell, dispose of or receive
subscriptions for any of its shares, including treasury shares,
without the affirmative consent, vote or approval of the holders of
100% of the shares of the Corporation then issued and outstanding.
This Article ELEVENTH may be amended only with the affirmative vote
of the holders of 100% of the issued and outstanding shares of the
Corporation.
IN WITNESS. WHEREOF, I, being the sole incorporator of the above-named corporation, have hereunto subscribed my
name this 4th day of February, 1983.
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/s/ Donald J. Shuller
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Incorporator |
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CERTIFICATE OF
MERGER
OF
LOGAN
WASTE CONTROL, INC.
(an Ohio
corporation)
and
LAIDLAW WASTE SYSTEMS (BELLEFONTAINE) INC.
(an Ohio corporation)
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APPROVED
By: D. BURNS
Date: 10-02-87
Amount: $50.00 |
A copy of the signed Agreement of Merger attached hereto, marked as Annex I for identification
and incorporated by reference herein, was duly adopted:
(1) By the Board of Directors of Laidlaw Waste Systems (Bellefontaine) Inc. by an action taken in writing and executed
by all of the directors of that corporation on September 21, 1987
in accordance with Ohio Revised Code Section 1701.54;
(2) By the holder of all of the voting shares of
Laidlaw Waste Systems (Bellefontaine) Inc. by an action taken in
writing and executed by the sole shareholder of that corporation
on September 21, 1987 in accordance with Ohio Revised Code
Section 1701.54;
(3) By the Board of Directors of Logan Waste Control,
Inc. at a meeting held on September 21, 1987;
(4) By the holders of not less than two-thirds of the
voting shares of Logan Waste Control, Inc. at a meeting held on
September 28, 1987.
Said Agreement of Merger provides that:,
(A) Laidlaw
Waste Systems (Bellefontaine) Inc. shall
merge with and into Logan Waste Control, Inc. and shall thereupon
cease to have a separate existence;
(B) Logan Waste Control, Inc. shall be the sole
surviving corporation in the merger;
(C) All holders of fully-paid common shares of Logan
Waste Control, Inc. at the time of the merger (other than Laidlaw
Waste Systems (Bellefontaine) Inc.) shall be entitled to receive
cash in the amount of $87,878 per share in substitution for each
share of Logan Waste Control, Inc. held by them;
(D) Each common share of Logan Waste Control, Inc.
held by Laidlaw Waste Systems (Bellefontaine) Inc. at the
effective date of the merger shall, automatically and without
further action by either Logan Waste Control, Inc. or Laidlaw
Waste Systems (Bellefontaine) Inc., constitute one common share
of the surviving corporation;
(E) The holder of all of the common shares of Laidlaw
Waste Systems (Bellefontaine) Inc. at the time of the merger
shall be issued, automatically and without further action of
either Logan Waste Control, Inc. or Laidlaw Waste Systems
(Bellefontaine) Inc., one common share of Logan Waste Control,
Inc. in substitution for each issued share of Laidlaw Waste
Systems (Bellefontaine) Inc. held by it; and
(F) The merger shall be effective upon the filing of
this certificate with the Secretary of State of Ohio.
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The undersigned have caused this Certificate of Merger to be executed to be effective as of
September 28, 1987.
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LOGAN WASTE CONTROL, INC.
an Ohio corporation
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By /s/ Donald E. Koogler
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Its President (Donald E. Koogler) |
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Attests: |
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/s/ Dick van Wyck |
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Its Secretary (Dick van Wyck)
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LAIDLAW WASTE SYSTEMS
(BELLEFONTAINE) INC.
an Ohio corporation
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By /s/ Donald E. Koogler
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Donald E. Koogler, Executive |
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Vice President |
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Attest: |
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/s/ Dick van Wyck |
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Dick van Wyck, Assistant Secretary
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Annex I
AGREEMENT OF MERGER
This Agreement of Merger (sometimes hereinafter called the MERGER AGREEMENT), dated as of
September 28, 1987, between LOGAN WASTE CONTROL, INC., an Ohio corporation (sometimes hereinafter
called LOGAN), and LAIDLAW WASTE SYSTEMS (BELLEFONTAINE) INC., an Ohio corporation (sometimes
hereinafter called LAIDLAW) (LOGAN and LAIDLAW sometimes hereinafter collectively referred to as
the CONSTITUENT CORPORATIONS):
WITNESSETH:
WHEREAS, the Board of Directors of each of the CONSTITUENT CORPORATIONS deems it
advisable and in the best interests of their respective corporation and shareholder(s) that the
CONSTITUENT CORPORATIONS be merged; and
WHEREAS, the Board of Directors of each of the CONSTITUENT CORPORATIONS has approved the MERGER AGREEMENT by resolutions duly adopted by each
such Board of Directors;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
contained herein, it is hereby agreed between the CONSTITUENT CORPORATIONS that the terms and
conditions of the merger contemplated by this MERGER AGREEMENT (sometimes hereinafter called the
MERGER), and the mode of carrying the MERGER into effect, shall be as follows:
ARTICLE ONE
The Surviving Corporation
Section 1.01. At the time when the MERGER shall become effective (sometimes
hereinafter called the MERGER DATE) LAIDLAW shall merge with and into LOGAN, and LOGAN shall be
the continuing and surviving corporation in the MERGER, shall continue to exist under the laws of
the State of Ohio, and shall be the only one of the CONSTITUENT CORPORATIONS to continue its
separate corporate existence after the MERGER DATE. As used in this MERGER AGREEMENT, the term
SURVIVING CORPORATION refers to LOGAN at and after the MERGER DATE.
Section 1.02. The name of the SURVIVING CORPORATION Shall be LAIDLAW WASTE SYSTEMS
(BELLEFONTAINE) INC.
Section 1.03. The Articles of Incorporation of LAIDLAW, attached hereto as
Exhibit A and incorporated by reference herein, shall be the articles of the SURVIVING
CORPORATION until amended in accordance with law.
Section 1.04. The Code of Regulations of LAIDLAW existing at the MERGER DATE
shall be the regulations of the SURVIVING CORPORATION until changed in accordance with
law.
Section 1.05. The directors of LAIDLAW at the MERGER DATE shall be the directors of
the SURVIVING CORPORATION until changed in accordance with law.
Section 1.06. The officers of LAIDLAW at the MERGER DATE shall be the officers of the
SURVIVING CORPORATION until changed in accordance with law.
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Section 1.07. The name and address of the statutory agent upon whom any process,
notice or demand against any CONSTITUENT CORPORATION or the SURVIVING CORPORATION may be served
are:
CT Corporation System
813 Carew Tower
Hamilton County
Cincinnati, Ohio 45202
ARTICLE TWO
Distributions to Shareholders
Section 2.01. The manner and basis of making distributions to shareholders of the CONSTITUENT CORPORATIONS in extinguishment of and in
substitution for their shares of the CONSTITUENT CORPORATIONS shall be as set forth in this Article
Two.
Section 2.02. At the MERGER DATE and as a result of the MERGER, each of the issued
common shares, without par value, of LOGAN shall, automatically and without further act of either
of the CONSTITUENT CORPORATIONS or of the holder thereof, be extinguished and shall cease to exist
(other than any share held by LAIDLAW); and in substitution for each LOGAN share so extinguished
(other than any such share held by LAIDLAW), the holder thereof shall be entitled to receive
$87,878 per share in cash (without interest) from the SURVIVING CORPORATION; and each holder of a
certificate or certificates which, prior to the MERGER, represented one or more common shares of
LOGAN that have been so extinguished as a result of the MERGER shall cease to have any rights with
respect to such shares, except the right to
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receive $87,878 per share in cash (without interest) for each such share upon the surrender of such
certificate or certificates to the SURVIVING CORPORATION.
Section 2.03. At the MERGER DATE and as a result of the MERGER, each of the issued
common shares, without par value, of LOGAN held by LAIDLAW shall, automatically and without further
act of either of the CONSTITUENT CORPORATIONS or of the holder thereof, constitute one common
share, without par value, of the SURVIVING CORPORATION.
Section 2.04. At the MERGER DATE and as a result of the MERGER, the holder of each of
the issued common shares, without par value, of LAIDLAW shall, automatically and without further
act of either of the CONSTITUENT CORPORATIONS or of the holder thereof, be issued one common share,
without par value, of the SURVIVING CORPORATION in substitution for each issued share of LAIDLAW
held by it.
Section 2.05. Anything contained in this MERGER AGREEMENT or elsewhere to the
contrary notwithstanding, if any person shall perfect dissenters rights in respect of one or more
shares of LOGAN in accordance with Ohio Revised Code §1701.85 (sometimes hereinafter called the
STATUTE), then:
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Each such share of LOGAN shall nevertheless be
deemed to be cancelled at the MERGER DATE as
provided elsewhere in this MERGER AGREEMENT; and |
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Each person perfecting such dissenters rights
shall thereafter have only such rights (and shall |
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have such obligations) as are provided in the STATUTE, and [unless such
rights and such obligations of such person are terminated in accordance with
division (D) of the STATUTE] the SURVIVING CORPORATION shall not be required
to make any cash payment otherwise to be made by it to such person in
substitution for each such common share of LOGAN in accordance with this
MERGER AGREEMENT. |
ARTICLE THREE
Termination and Abandonment; Amendment
Section 3.01. The MERGER contemplated by this MERGER AGREEMENT may be terminated and
abandoned by the Board of Directors of LAIDLAW at any time prior to the MERGER DATE and for any
reason, without notice of such action to LOGAN.
Section 3.02. From time to time and at any time prior to the MERGER DATE, this MERGER
AGREEMENT may be amended by an agreement in writing executed in the same manner as this MERGER
AGREEMENT, after authorization of such action by the Board of Directors of the CONSTITUENT
CORPORATIONS, but no such amendment shall materially and adversely alter or change the rights and
obligations of the shareholders of LOGAN or LAIDLAW without their approval or be prohibited by law.
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ARTICLE FOUR
Effective Date of MERGER
Section 4.01. After this MERGER AGREEMENT shall have been duly adopted by the Board
of Directors and by the shareholders of each of the CONSTITUENT CORPORATIONS, each of the
CONSTITUENT CORPORATIONS shall cause a Certificate of Merger (in the form required by Ohio Revised
Code §1701.81) to be executed and filed with the Secretary of State of Ohio, and the MERGER shall
become effective upon such filing.
ARTICLE FIVE
Miscellaneous
Section 5.01. This MERGER AGREEMENT may be executed in one or more counterparts, each
of which shall be deemed to be a duplicate original, but all of which taken together, shall be
deemed to constitute a single instrument.
Section 5.02. The captions contained in this MERGER AGREEMENT are included only for
convenience of reference and do not define, limit, explain or modify this MERGER AGREEMENT or its
interpretation, construction or meaning and are in no way to be construed as a part of this MERGER
AGREEMENT.
Section 5.03. This MERGER AGREEMENT shall be governed by and construed in accordance
with the laws of the State of Ohio.
Section 5.04. This MERGER AGREEMENT shall inure to the benefit of and be binding upon
the respective successors and
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assigns (including successive, as well as immediate, successors and assigns) of the
parties hereto.
Section 5.05. The number and gender of each pronoun used in this MERGER
AGREEMENT shall be construed to mean such number and gender as the context, circumstances or
its antecedent may require.
IN WITNESS WHEREOF, this MERGER AGREEMENT has been executed on behalf of the
CONSTITUENT CORPORATIONS and executed by their officers duly authorized in the premises.
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LOGAN WASTE CONTROL, INC.,
an Ohio corporation
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By /s/ Donald E. Koogler
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Its President (Donald E. Koogler) |
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ATTEST: |
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By /s/ Dick van Wyck |
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Its Secretary (Dick van Wyck)
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LAIDLAW WASTE SYSTEMS
(BELLEFONTAINE) INC., an Ohio corporation
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By /s/ Donald E. Koogler
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Donald E. Koogler, Executive |
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Vice
President |
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ATTEST: |
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By /s/ Dick van Wyck |
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Dick van Wyck, Assistant Secretary
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Exhibit A
ARTICLES OF INCORPORATION
OF
LAIDLAW WASTE SYSTEMS (BELLEFONTAINE) INC.
The undersigned, desiring to form a corporation for profit under Chapter 1701 of the
Ohio Revised Code, does hereby certify:
FIRST:
The name of the corporation shall be Laidlaw Waste Systems (Bellefontaine)
Inc.
SECOND: The place in Ohio where the principal office of the corporation is to be
located is in the City of Columbus, County of Franklin.
THIRD: The purpose for which the corporation is formed is to engage in any lawful
act or activity for which corporations may be formed under Sections 1701.01 to 1701.98 of the Ohio
Revised Code.
FOURTH: The authorized number of shares of the corporation shall be 750, all of
which shall be common shares, each without par value.
FIFTH: The directors of the corporation shall have the power to cause the
corporation from time to time and at any time to purchase, hold, sell, transfer or otherwise deal
with (A) shares of any class or series issued by it, (B) any security or other obligation of the
corporation which may confer upon the holder thereof the right to convert the same into shares of
any class or series authorized by the articles of the corporation,
and (C) any security or other obligation which may confer upon the holder thereof the right to
purchase shares of any class or series authorized by the articles of the corporation. The
corporation shall have the right to repurchase, if and when any shareholder desires to sell, or on
the happening of any event is required to sell, shares of any class or series issued by the
corporation. The authority granted in this Article Fifth of these articles shall not limit the
plenary authority of the directors to purchase, hold, sell, transfer or otherwise deal with shares
of any class or series, securities, or other obligations issued by the corporation or authorized by
its articles.
SIXTH:
No shareholder of the corporation shall have, as a matter of right, the pre-emptive right to purchase or subscribe for shares of any class, now
or hereafter authorized, or to purchase or subscribe for securities or other obligations
convertible into or exchangeable for such shares or which by warrants or otherwise entitle the
holders thereof to subscribe for or purchase any such share.
SEVENTH: Notwithstanding any provision of the Ohio Revised Code requiring for any
purpose the vote, consent, waiver or release of the holders of shares of the corporation entitling
them to exercise two-thirds or any other proportion of the voting power of the corporation or of
any class or classes of shares thereof, such action, unless expressly provided otherwise by
statute, may be taken by the vote, consent, waiver or release of the holders of shares entitling
them to exercise not less than a
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majority of the voting power of the corporation or of such class or classes.
IN
WITNESS WHEREOF, I have hereunto signed my name this 11th day of September, 1987.
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/s/ Thomas E. Szykowny
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Thomas E. Szykowny, Incorporator |
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Prescribed by BOB TAFT, Secretary of State
30 East Broad Street, 14th Floor
Columbus, Ohio 43266-0418
Form SH-AMD (January 1991)
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Charter No.: 605685
Approved: [ILLEGIBLE]
Date: 12-16-97
Fee: $35.00
97121672902 |
CERTIFICATE OF AMENDMENT
by Shareholders to the Articles of Incorporation of
Laidlaw
Waste Systems (Bellefontaine), Inc.
(Name of Corporation)
Don Slager, who is:
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o Chairman of the Board
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o President
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þ Executive Vice President (check one) |
and
Thomas
K. Kehoe, who is:
þ Secretary o Assistant Secretary (Check one)
of the above named Ohio corporation for profit do hereby certify that: (check the appropriate box
and complete the appropriate statements)
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a meeting of the shareholders was duly called for the purpose of adopting this amendment and
held on , 19 at which meeting a quorum of the shareholders was present in person or by proxy, and by the affirmative vote of the holders of shares entitling
them to exercise % of the voting power of the corporation. |
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in a writing signed by all of the shareholders who would be entitled to notice of a
meeting held for that purpose, the following resolution to amend the articles was adopted: |
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The name of the corporation is Cherokee Run Landfill, Inc. |
IN WITNESS WHEREOF, the above named officers, acting for and on the behalf of the corporation,
have hereto subscribed their names this 5th day of December, 1997.
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By /s/ Don Slager
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Don
Slager Ex. Vice President |
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By /s/ Thomas K. Kehoe
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Thomas K. Kehoe Secretary |
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NOTE: Ohio law does not permit one officer to sign in two capacities, Two separate signatures
are required, even if this necessitates the election of a second officer before the filing can be made.
exv3w380
Exhibit 3.380
REGULATIONS
OF
LOGAN WASTE CONTROL, INC.
ARTICLE ONE
MEETINGS OF SHAREHOLDERS
Section 1.01. Annual Meetings. The annual meeting of the shareholders for the
election of directors, for the consideration of reports to be laid before such meeting and for the
transaction of such other business as may properly come before such meeting, shall be held on the
second Tuesday of April in each year or on such other date as may be fixed from time to time by the
directors.
Section 1.02. Calling of Meetings. Meetings of the shareholders may be called only
by the chairman of the board, the president, or, in case of the presidents absence, death, or
disability, the vice president authorized to exercise the authority of the president; the
secretary; the directors by action at a meeting, or a majority of the directors acting without a
meeting; or the holders of at least 20% of all shares outstanding and entitled to vote thereat.
Section 1.03. Place of Meetings. All meetings of shareholders shall be held at the
principal office of the corporation, unless otherwise provided by action of the directors. Meetings
of shareholders may be held at any place within or without the State of Ohio.
Section 1.04. Notice of Meetings. (A) Written notice stating the time, place and
purposes of a meeting of the shareholders shall be given either by personal delivery or by mail not
less than seven nor more than sixty days before the date of the meeting, (1) to each shareholder of
record entitled to notice of the meeting, (2) by or at the direction of the president or the
secretary. If mailed, such notice shall be addressed to the shareholder at his address as it
appears on the records of the corporation. Notice of adjournment of a meeting need not be given if
the time and place to which it is adjourned are fixed and announced at such meeting. In the event
of a transfer of shares after the record date for determining the shareholders who are entitled to
receive notice of a meeting of shareholders, it shall not be necessary to give notice to the
transferee. Nothing herein contained shall prevent the setting of a record date in the manner
provided by law, the Articles or the Regulations for the determination of shareholders who are
entitled to receive notice of or to vote at any meeting of shareholders or for any purpose required
or permitted by law.
(B) Following receipt by the president or the secretary of a request in writing, specifying
the purpose or purposes for which the persons properly making such request have called a meeting of
the shareholders, delivered either in person or by registered mail to such officer by any persons
entitled to call a meeting of shareholders, such officer shall cause to be given to the
shareholders entitled thereto notice of a meeting to be held on a date not less than seven nor more
than sixty days
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after the receipt of such request, as such officer may fix. If such notice is not given within
fifteen days after the receipt of such request by the president or the secretary, then, and only
then, the persons properly calling the meeting may fix the time of meeting and give notice thereof
in accordance with the provisions of the Regulations.
Section 1.05. Waiver of Notice. Notice of the time, place and purpose or purposes of
any meeting of shareholders may be waived in writing, either before or after the holding of such
meeting, by any shareholders, which writing shall be filed with or entered upon the records of such
meeting. The attendance of any shareholder, in person or by proxy, at any such meeting without
protesting the lack of proper notice, prior to or at the commencement of the meeting, shall be
deemed to be a waiver by such shareholder of notice of such meeting.
Section 1.06. Quorum. At any meeting of shareholders, the holders of a majority of
the voting shares of the corporation then outstanding and entitled to vote thereat, present in
person or by proxy, shall constitute a quorum for such meeting. The holders of a majority of the
voting shares represented at a meeting, whether or not a quorum is present, or the chairman of the
board, the president, or the officer of the corporation acting as chairman of the meeting, may
adjourn such meeting from time to time, and if a quorum is present at such adjourned meeting any
business may be transacted as if the meeting had been held as originally called.
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Section 1.07. Votes Required. At all elections of directors the candidates receiving
the greatest number of votes shall be elected. Any other matter submitted to the shareholders for
their vote shall be decided by the vote of such proportion of the shares, or of any class of
shares, or of each class, as is required by law, the Articles or the Regulations.
Section 1.08. Order of Business. The order of business at any meeting of
shareholders shall be determined by the officer of the corporation acting as chairman of such
meeting unless otherwise determined by a vote of the holders of a majority of the voting shares of
the corporation then outstanding, present in person or by proxy, and entitled to vote at such
meeting.
Section 1.09. Shareholders Entitled to Vote. Each shareholder of record on the books
of the corporation on the record date for determining the shareholders who are entitled to vote at
a meeting of shareholders shall be entitled at such meeting to one vote for each share of the
corporation standing in his name on the books of the corporation on such record date. The directors
may fix a record date for the determination of the shareholders who are entitled to receive notice
of and to vote at a meeting of shareholders, which record date shall not be a date earlier than the
date on which the record date is fixed and which record date may be a maximum of sixty days
preceding the date of the meeting of shareholders.
Section 1.10. Cumulative Voting. If notice in writing shall be given by a
shareholder to the president, a vice president
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or the secretary of the corporation, not less than forty-eight hours before the time fixed for
holding a meeting of the shareholders for the purpose of electing directors if notice of such
meeting shall have been given at least ten days prior thereto, and otherwise not less than
twenty-four hours before such time, that such shareholder desires that the voting at such election
shall be cumulative, and if an announcement of the giving of such notice is made upon the convening
of the meeting by the chairman or secretary or by or on behalf of the shareholder giving such
notice, each shareholder shall have the right to cumulate such voting power as he possesses and to
give one candidate as many votes as is determined by multiplying the number of directors to be
elected by the number of votes to which such shareholder is entitled, or to distribute such number
of votes on the same principle among two or more candidates, as he sees fit.
Section 1.11. Proxies. At meetings of the shareholders any shareholder of record
entitled to vote thereat may be represented and may vote by a proxy or proxies appointed by an
instrument in writing signed by such shareholder, but such instrument shall be filed with the
secretary of the meeting before the person holding such proxy shall be allowed to vote thereunder.
No proxy shall be valid after the expiration of eleven months after the date of its execution,
unless the shareholder executing it shall have specified therein the length of time it is to
continue in force.
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Section 1.12. Inspectors of Election. In advance of any meeting of
shareholders, the directors may appoint inspectors of election to act at such meeting or any
adjournment thereof; if inspectors are not so appointed, the officer of the corporation acting as
chairman of any such meeting may make such appointment. In case any person appointed as inspector
fails to appear or act, the vacancy may be filled only by appointment made by the directors in
advance of such meeting or, if not so filled, at the meeting by the officer of the corporation
acting as chairman of such meeting. No other person or persons may appoint or require the
appointment of inspectors of election.
ARTICLE TWO
DIRECTORS
Section 2.01. Authority and Qualifications. Except where the law, the
Articles or the Regulations otherwise provide, all authority of the corporation shall be vested in
and exercised by its directors. Directors need not be shareholders of the
corporation.
Section 2.02. Number of Directors and Term of Office.
(A) Until changed in accordance with the provisions of the Regulations, the number of
directors of the corporation shall be three. Each director shall be elected to serve until the
next annual meeting of shareholders and until his successor is duly elected and qualified or until
his earlier resignation, removal from office, or death.
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(B) The number of directors may be fixed or changed at
a meeting of the shareholders called for the purpose of electing
directors at which a quorum is present, only by the affirmative
vote of the holders of not less than a majority of the voting shares which are represented at the meeting, in person or by
proxy, and entitled to vote on such proposal.
(C) The directors may fix or change the number of
directors and may fill any directors office that is created by
an increase in the number of directors; provided, however, that
the directors may not increase the number of directors to more
than five nor reduce the number of directors to less than three.
(D) No reduction in the number of directors shall of
itself have the effect of shortening the term of any incumbent
director.
Section 2.03. Election. At each annual meeting of shareholders for the election of
directors, the successors to the directors whose term shall expire in that year shall be elected,
but if the annual meeting is not held or if one or more of such directors are not elected thereat,
they may be elected at a special meeting called for that purpose. The election of directors shall
be by ballot whenever requested by the presiding officer of the meeting or by the holders of a
majority of the voting shares outstanding, entitled to vote at such meeting and present in person
or by proxy, but unless such request is made, the election shall be viva voce.
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Section 2.04. Removal. A director or directors may be removed from office, with
or without assigning any cause, only by the vote of the holders of shares entitling them to
exercise not less than a majority of the voting power of the corporation to elect directors in
place of those to be removed. In case of any such removal, a new director may be elected at the
same meeting for the unexpired term of each director removed. Failure to elect a director to fill
the unexpired term of any director removed shall be deemed to create a vacancy in the board.
Section 2.05. Vacancies. Vacancies in the board may be filled in the manner provided
by law, the Articles or the Regulations.
Section 2.06. Meetings. A meeting of the directors shall be held immediately
following the adjournment of each annual meeting of shareholders at which directors are elected,
and notice of such meeting need not be given. The directors shall hold such other meetings as may
from time to time be called, and such other meetings of directors may be called only
by the chairman of the board, the president, or any two directors. All meetings of directors shall
be held at the principal office of the corporation in the City of Plain City or at such other place
within or without the State of Ohio, as the directors may from time to time determine by a
resolution. Meetings of the directors may be held through any communications equipment if all
persons participating can hear each other and participation in a meeting pursuant to this provision
shall constitute presence at such meeting.
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Section 2.07. Notice of Meetings. Notice of the time and place of each
meeting of directors for which such notice is required by law, the Articles, the Regulations or the
By-Laws shall be given to each of the directors by at least one of the following methods:
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In a writing mailed not less than three days
before such meeting and addressed to the residence
or usual place of business of a director, as such
address appears on the records of the corporation;
or |
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By telegraph, cable, radio, wireless, or a writing
sent or delivered to the residence or usual place
of business of a director as the same appears on
the records of the corporation, not later than the
day before the date on which such meeting is to be
held; or |
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Personally or by telephone not later than the day
before the date on which such meeting is to be
held. |
Notice given to a director by any one of the methods specified in the Regulations shall be
sufficient, and the method of giving notice to all directors need not be uniform. Notice of any
meeting of directors may be given only by the chairman of the board, the president or the secretary
of the corporation. Any such notice need not specify the purpose or purposes of the meeting.
Notice of adjournment of a meeting of directors need
-9-
not be given if the time and place to which it is adjourned are fixed and announced at such
meeting.
Section 2.08. Waiver of Notice. Notice of any meeting of directors may be waived in
writing, either before or after the holding of such meeting, by any director, which writing shall
be filed with or entered upon the records of the meeting. The attendance of any director at any
meeting of directors without protesting, prior to or at the commencement of the meeting, the lack
of proper notice, shall be deemed to be a waiver by him of notice of such meeting.
Section 2.09. Quorum. A majority of the whole
authorized number of directors shall be necessary to constitute a quorum for a meeting of
directors, except that a majority of the directors in office shall constitute a quorum for filling
a vacancy in the board. The act of a majority of the directors present at a meeting at which a
quorum is present is the act of the board, except as otherwise provided by law, the Articles or the
Regulations.
Section 2.10. Executive Committee. The directors may create an executive committee
or any other committee of directors, to consist of not less than three directors, and may authorize
the delegation to such executive committee or other committees of any of the authority of the
directors, however conferred, other than that of filling vacancies among the directors or in the
executive committee or in any other committee of the director.
-10-
Such executive committee or any other committee of directors shall serve at the
pleasure of the directors, shall act only in the intervals between meetings of the directors, and
shall be subject to the control and direction of the directors. Such executive committee or other
committee of directors may act by a majority of its members at a meeting or by a writing or
writings signed by all of its members.
Any act or authorization of an act by the executive committee or any other committee within
the authority delegated to it shall be as effective for all purposes as the act or authorization of
the directors. No notice of a meeting of the executive committee or of any other committee of
directors shall be required. A meeting of the executive committee or of any other committee of
directors may be called only by the president or by a member of such executive or other committee
of directors. Meetings of the executive committee or of any other committee of directors may be
held through any communications equipment if all persons participating can hear each other and
participation in such a meeting shall constitute presence thereat.
Section 2.11. Compensation. Directors shall be entitled to receive as compensation
for services rendered and expenses incurred as directors, such amounts as the directors may
determine.
Section 2.12. By-Laws. The directors may adopt, and amend from time to time, By-Laws
for their own government, which
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By-Laws shall not be inconsistent with the law, the Articles or the Regulations.
ARTICLE THREE
OFFICERS
Section 3.01. Offices. The officers of the corporation to be elected by the
directors shall be a president, a secretary, a treasurer, and, if desired, one or more vice
presidents and such other officers and assistant officers as the directors may from time to time
elect. The directors may elect a chairman of the board, who must be a director. Officers need not
be shareholders of the corporation, and may be paid such compensation as the board of directors may
determine. Any two or more offices may be held by the same person, but no officer shall execute,
acknowledge, or verify any instrument in more than one capacity if such instrument is required by
law, the Articles, the Regulations or the By-Laws to be executed, acknowledged, or verified by two
or more officers.
Section 3.02. Tenure of Office. The officers of the corporation shall hold office at
the pleasure of the directors. Any officer of the corporation may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of all the directors then in
office; such removal, however, shall be without prejudice to the contract rights, if any, of the
person so removed.
Section 3.03.
Duties of the Chairman of the Board. The chairman of the board, if any,
shall preside at all meetings
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of the directors. He shall have such other powers and duties as the directors shall from time to
time assign to him.
Section 3.04. Duties of the President. The president shall be the chief executive
officer of the corporation and shall exercise supervision over the business of the corporation and
shall have, among such additional powers and duties as the directors may from time to time assign
to him, the power and authority to sign all certificates evidencing shares of the corporation and
all deeds, mortgages, bonds, contracts, notes and other instruments requiring the signature of the
president of the corporation. It shall be the duty of the president to preside at all meetings of
shareholders.
Section 3.05. Duties of the Vice Presidents. In the absence of the president or in
the event of his inability or refusal to act, the vice president, if any (or in the event there be
more than one vice president, the vice presidents in the order designated, or in the absence of any
designation, then in the order of their election), shall perform the duties of the president, and
when so acting, shall have all the powers of and be subject to all restrictions upon the president.
The vice presidents shall perform such other duties and have such other powers as the directors
may from time to time prescribe.
Section 3.06. Duties of the Secretary. It shall be the duty of the secretary, or of
an assistant secretary, if any, in case of the absence or inability to act of the secretary, to
keep minutes of all the proceedings of the shareholders and the directors and to make a proper
record of the same; to perform
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such other duties as may be required by law, the Articles or the Regulations; to perform such other
and further duties as may from time to time be assigned to him by the directors or the president;
and to deliver all books, paper and property of the corporation in his possession to his successor,
or to the president.
Section 3.07. Duties of the Treasurer. The treasurer, or an assistant treasurer, if
any, in case of the absence or inability to act of the treasurer, shall receive and safely keep in
charge all money, bills, notes, choses in action, securities and similar property belonging to the
corporation, and shall do with or disburse the same as directed by the president or the directors;
shall keep an accurate account of the finances and business of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, stated capital and shares,
together with such other accounts as may be required and hold the same open for inspection and
examination by the directors; shall give bond in such sum with such security as the directors may
require for the faithful performance of his duties; shall, upon the expiration of his term of
office, deliver all money and other property of the corporation in his possession or custody to his
successor or the president; and shall perform such other duties as from time to time may be
assigned to him by the directors.
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ARTICLE FOUR
SHARES
Section 4.01.
Certificates. Certificates evidencing ownership of shares of
the corporation shall be issued to those entitled to them. Each certificate evidencing shares of
the corporation shall bear a distinguishing number; the signatures of the chairman of the board,
the president, or a vice president, and of the secretary or an assistant secretary (except that
when any such certificate is countersigned by an incorporated transfer agent or registrar, such
signatures may be facsimile, engraved, stamped or printed); and such recitals as may be required by
law. Certificates evidencing shares of the corporation shall be of such tenor and design as the
directors may from time to time adopt and may bear such recitals as are permitted by law.
Section 4.02. Transfers. Where a certificate
evidencing a share or shares of the corporation is presented to the corporation or its proper
agents with a request to register transfer, the transfer shall be registered as requested if:
(1) An appropriate person signs on each certificate so
presented or signs on a separate document an assignment or transfer of shares evidenced by each such certificate, or signs a
power to assign or transfer such shares, or when the signature of
an appropriate person is written without more on the back of each
such certificate; and
(2) Reasonable assurance is given that the indorsement
of each appropriate person is genuine and effective; the corporation or its agents may refuse to register a transfer of shares
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unless the signature of each appropriate person is guaranteed by a commercial bank or trust
company having an office or a correspondent in the City of New York or by a firm having membership
in the New York Stock Exchange; and
(3) All applicable laws relating to the collection of
transfer or other taxes have been complied with; and
(4) The corporation or its agents are not otherwise
required or permitted to refuse to register such transfer.
Section 4.03. Transfer Agents and Registrars. The directors may appoint one or
more agents to transfer or to register shares of the corporation, or both.
Section 4.04. Lost, Wrongfully Taken or Destroyed Certificates. Except as otherwise
provided by law, where the owner of a certificate evidencing shares of the corporation claims that
such certificate has been lost, destroyed or wrongfully taken, the directors must cause the
corporation to issue a new certificate in place of the original certificate if the owner:
(1) So requests before the corporation has notice that
such original certificate has been acquired by a bona fide
purchaser; and
(2) Files with the corporation, unless waived by the
directors, an indemnity bond, with surety or sureties satisfactory to the corporation, in such sums as the directors may, in
their discretion, deem reasonably sufficient as indemnity against
any loss or liability that the corporation may incur by reason of
the issuance of each such new certificate; and
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(3) Satisfies any other reasonable requirements which may be imposed by the directors,
in their discretion.
ARTICLE FIVE
INDEMNIFICATION AND INSURANCE
Section 5.01. Indemnification. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, or investigative (other than an action
threatened or instituted directly by the corporation) by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation, and with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to
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the best interests of the corporation, and with respect to any criminal action or proceeding, he
had reasonable cause to believe that his conduct was unlawful.
Section 5.02. Discretionary Indemnification. The corporation may indemnify or agree
to indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action or suit which is threatened or instituted by the
corporation directly (rather than a derivative action in the right of the corporation) to procure a
judgment in its favor by reason of the fact that he is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation as a director,
trustee, officer, employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with such action or suit of he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, except that no such
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the performance of his duty
to the corporation unless and only to the extent that the Court of Common Pleas of Madison County,
Ohio or the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
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expenses as such Court of Common Pleas or such other court shall deem proper.
Section 5.03.
Indemnification for Expenses. To the extent that a director, trustee,
officer, employee or agent has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 5.02, or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him in connection therewith.
Section 5.04 Determination Required. Any indemnification under Sections 5.01 and
5.02 (unless ordered by a court) shall be made by the corporation only upon a determination that
the indemnification of the director, trustee, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in Sections 5.01 and
5.02. Such determination shall be made (A) by the directors by a majority vote of a quorum
consisting of directors who were not and are not parties to, or threatened with, such action, suit
or proceeding or (B) if such a quorum is not obtainable or if a majority of a quorum of
disinterested directors so directs, in a written opinion by independent legal counsel, or (C) by
the shareholders. Any determination made by the disinterested directors or by independent legal
counsel under this Section 5.04 to provide indemnity under Section 5.01 to a person threatened or
sued in the right of the corporation (derivatively) shall be promptly communicated to the person
who threatened or brought the derivative action or suit in the right of the corporation, and
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such
person shall have the right, within 10 days after receipt of
such notification, to petition the
Court of Common Pleas of Madison County, Ohio or the court in which action or suit was brought to
review the reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including attorneys fees) incurred
in defending any civil or criminal action, suit, or proceeding referred to in Sections 5.01 and
5.02 may be paid by the corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the directors in the specific case upon receipt of an undertaking by or
on behalf of the director, trustee, officer, employee, or agent to repay such amount, unless it
shall ultimately be determined that he is entitled to be indemnified by the corporation as
authorized in this Article Five.
Section 5.06. Article Five Not Exclusive. The
indemnification provided by this Article Five shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under the Articles or the Regulations or any
agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a
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director, officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under the provisions of
this Article Five.
Section 5.08. Definition of the Corporation. As used in this Article Five,
references to the corporation include all constituent corporations in a consolidation or merger
and the new or surviving corporation, so that any person who is or was a director, trustee,
officer, employee or agent of such a constituent corporation, or is or was serving at the request
of such constituent corporation as a director, trustee, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, shall stand in the same
position under the provisions of this Article Five with respect to the new or surviving corporation
as he would if he had served the new or surviving corporation in the same capacity.
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Amendments. The Regulations may be amended, or new regulations may be
adopted, at a meeting of shareholders held for such purpose, only by the affirmative vote of the
holders of shares entitling them to exercise not less than
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a majority of the voting power of the corporation on such proposal, or without a meeting by the
written consent of the holders of shares entitling them to exercise not less than a majority of the
voting power of the corporation on such proposal.
Section 6.02. Action by Shareholders or Directors Without a Meeting. Anything
contained in the Regulations to the contrary notwithstanding, except as provided in Section 6.01,
any action which may be authorized or taken at a meeting of the shareholders or of the directors or
of a committee of the directors, as the case may be, may be authorized or taken without a meeting
with the affirmative vote or approval of, and in a writing or writings signed by, all the
shareholders who would be entitled to notice of a meeting of the shareholders held for such
purpose, or all the directors, or all the members of such committee of the directors, respectively,
which writings shall be filed with or entered upon the records of the corporation.
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exv3w381
Exhibit 3.381
CERTIFICATE OF FORMATION
CHILTON LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Chilton Landfill, LLC.
2. Registered
Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 5th day of October, 1999.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member
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By: |
/s/ D. W. Slager
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D. W. Slager, Vice President, Operations |
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exv3w382
Exhibit 3.382
OPERATING AGREEMENT
OF CHlLTON LANDFILL, LLC
This Operating Agreement (the Agreement) of Chilton Landfill, LLC (the Company) is
executed as of October 5, 1999, by Allied Waste North America, Inc., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is Chilton Landfill, LLC. All business of the
Company shall be conducted in the Company name. The Company shall hold its property in the name
of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills and providing waste transportation services, and to
engage in any other activity permitted under Delaware law and the laws of any jurisdiction in which
the Company may do business.
1.5 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for
service of legal process may be changed upon the consent of the Member.
1.7 Certificate of Formation. The Member shall file any amendments to the Certificate
of Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Member
in accordance with the terms hereof. Upon the approval of any amendments thereto, by the Member
in accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are: Allied Waste North
America, Inc., a Delaware corporation, 15880 N. Greenway Hayden Loop, Suite 100, Scottsdale,
Arizona 85260.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement, which is incorporated herein by this
reference. The Member shall not be obligated to make additional Capital Contributions to the
Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be determined by
the Member. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically and to
the Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the consent
or approval of the Member under this Agreement, shall be made within the sole discretion of the
Member. Any party dealing with the Company shall be permitted to rely absolutely on the
signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them herein or in resolutions duly adopted by the
Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise
specified by the Member, the following officers shall have the authority to engage in the activities
set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
2
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him
by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Executive Vice President, if there is one acting, or
in the absence of an Executive Vice President, the Vice President or the Vice Presidents if there
are more than one, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President
shall perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this
Agreement, Assistant Secretaries, if there are any, shall perform such duties and have such powers
as from time to time may be assigned to them by the Member, the President, any Vice President, if
there are any appointed, or the Secretary, and in the absence of the Secretary or in the event of
his disability or refusal to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
3
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a
bond in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case
of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member and its officers and any officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate
account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the proceeds of such sale;
4
(b) The election by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under § 18-802 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of dissolution have been filed with
the Delaware Secretary of State or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, articles of
dissolution shall be executed and filed by the Member with the Delaware Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
5
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann. Tit.
6, § 18-101, et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Articles of Organization has the meaning given that term in Section 1.7 hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
6
7.7 No Third-Party Beneficiaries. No term or provision of this Operating Agreement is
intended to or shall be for the benefit of any Person not a party hereto, and no such other Person
shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Vice President - Legal |
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7
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
Allied Waste North America, Inc. |
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15880 North Greenway Hayden Loop |
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100.00 |
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100 |
% |
Suite 100 |
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Scottsdale, Arizona 85260 |
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8
exv3w383
Exhibit 3.383
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MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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FILED
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Date Received |
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APR 20 1984
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APR 20 1984 |
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Administrator
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MICHIGAN DEPARTMENT OF COMMERCE
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Corporation & Securities Bureau
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EFFECTIVE DATE: |
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CORPORATION IDENTIFICATION NUMBER |
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2 |
8 |
9 |
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5 |
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ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions on last page before completing form)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned
corporation executes the following Articles:
Article I
The name of the corporation is:
CITIZENS DISPOSAL, INC.
Article II
The purpose or purposes for which the corporation is organized is to engage in any activity within
the purposes for which corporations may be organized under the Business Corporation Act of
Michigan.
Article III
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The total authorized capital stock is: |
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Common Shares
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5,000 |
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Par Value Per Share
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1.00 |
1. |
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Preferred Shares
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Par Value Per Share
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$ |
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and/or shares without par value as follows: |
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Common Shares
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Stated Value Per Share
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Preferred Shares
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Stated Value Per Share
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A statement of all or any of the relative rights, preferences and limitations of the shares
of each class is as follows: |
Article IV
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The address of the registered office is: |
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142 West Second Street-Ste 102
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Flint
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Michigan
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48502 |
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(Street Address)
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The mailing address of the registered office |
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142 West Second Street-Ste 102
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Flint
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Michigan
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48502 |
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(PO Box)
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The name of the resident agent at the registered office is: William H. Leoni, Jr. |
Article V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
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Residence or Business Address |
William H. Leoni, Jr.
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142 W. Second Street-Ste 102- Flint, Michigan 48502 |
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Patrick A. Leoni
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142 W. Second Street-Ste 102- Flint, Michigan 48502 |
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Michael C. Leoni
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142 W. Second Street-Ste 102- Flint, Michigan 48502 |
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Article VI (Optional. Delete if not applicable)
When a compromise or arrangement or a plan of reorganization of this corporation is proposed
between this corporation and its creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of this corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of
creditors or of the shareholders or class of shareholders to be affected by the proposed
compromise or arrangement or reorganization, to be summoned in such manner as the court directs.
If a majority in number representing ¾ in value of the creditors or class of creditors, or of
the shareholders or class of shareholders to be affected by the proposed compromise or
arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of
this corporation as a consequence of the compromise or arrangement, the compromise or
arrangement and the reorganization, if sanctioned by the court to which the application has been
made, shall be binding on all the creditors or class of creditors, or on all the shareholders or
class of shareholders and also on this corporation.
Article VII (Optional. Delete it not applicable)
Any action required or permitted by the Act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote thereon were present and
voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented in writing.
Use space below for additional Articles or for continuation of previous Articles. Please identify
any Article being continued or added. Attach additional pages if needed.
I (We), the incorporator(s) sign my (our) name(s) this 18th day of APRIL, 1984.
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/s/ William H. Leoni |
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/s/ Patrick A. Leoni |
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/s/ Michael C. Leoni |
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MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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Date Received |
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UG 28 1999 |
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[ILLEGIBLE] |
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RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation
executes the following Articles:
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1.
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The present name of the corporation is: Citizens Disposal, Inc. |
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2.
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The corporation identification number (CID) assigned by the Bureau is:
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8 |
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3.
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All former names of the corporation are: None |
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4. |
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The date of filing the original Articles of Incorporation was: |
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April 20,1984 |
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The following Restated Articles of Incorporation supersede the Articles of Incorporation as
amended and shall be the Articles of Incorporation for the corporation: |
ARTICLE I
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The name of the corporation is: Citizens Disposal, Inc. |
ARTICLE II
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The purpose or purposes for which the corporation is formed are: To engage in any activity within
the purposes for which corporations may be formed under the Business Corporation Act of
Michigan. |
ARTICLE III
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The total authorized capital stock is: |
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1.
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Common shares
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10,000 |
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Preferred shares
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N/A |
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A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: None |
ARTICLE IV
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The address of the current registered office is: |
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615 Griswold Street,
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Detroit
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Michigan
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48226 |
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(Street Address)
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(Zip Code)
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The mailing address of the current registered office if different than above: |
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Michigan |
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(P.O. Box)
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(City)
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The name of the current resident agent is: The Corporation Company |
ARTICLE V (Optional. Delete if not applicable.)
When a compromise or arrangement or a plan of reorganization of this corporation is proposed
between this corporation and its creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of this corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of creditors
or of the shareholders or class of shareholders to be affected by the proposed compromise or
arrangement or reorganization, to be summoned in such manner as the court directs. If a majority
in number representing ¾ in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise or arrangement or
a reorganization, agree to a compromise or arrangement or a reorganization of this corporation as
a consequence of the compromise or arrangement, the compromise or arrangement and the
reorganization, if sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this corporation.
ARTICLE VI (Optional. Delete if not applicable.)
Any action required or permitted by the Act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if consents
in writing, setting forth the action so taken, are signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote on the action were present and voted. The
written consents shall bear the date of signature of each shareholder who signs the consent. No
written consents shall be effective to take the corporate action referred to unless, within 60
days after the record date for determining shareholders entitled to express consent to or to
dissent from a proposal without a meeting, written consents signed by a sufficient number of
shareholders to take the action
ARTICLE VI (continued)
are delivered to the corporation. Delivery shall be to the corporations registered office,
its principal place of business, or an officer or agent of the corporation having custody of
the minutes of the proceedings of its shareholders. Delivery made to a corporations
registered office shall be by hand or by certified or registered mail, return receipt
requested.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented in writing.
ARTICLE VII (Additional provisions, if any, may be inserted here; attach additional pages if
needed.)
No director of the corporation shall be personally liable to the corporation or its
shareholders for monetary damages for a breach of the directors fiduciary duty.
5. |
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COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE UNANIMOUS CONSENT OF THE
INCORPORATORS BEFORE THE FIRST MEETING OF THE BOARD OF DIRECTORS; OTHERWISE, COMPLETE SECTION
(b) |
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a. |
o |
These Restated Articles of Incorporation were duly adopted on
the day of , 19 , in
accordance with the provisions of Section 642 of the Act by the unanimous consent of the incorporators
before the first meeting of the Board of Directors. |
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Signed this
day of , 19 |
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(Signatures of all incorporators; type or print name under each signature) |
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b. |
þ |
These Restated Articles of Incorporation were duly adopted on the
day of ,
1992, in accordance with the provisions of Section 642 of the Act and: (check one of the
following) |
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were duly adopted by the Board of Directors without a vote of the shareholders.
These Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Articles of
Incorporation as heretofore amended and there is no material discrepancy
between those provisions and the provisions of these Restated Articles. |
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were duly adopted by the shareholders. The necessary number of shares as
required by statute were voted in favor of these Restated Articles. |
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were duly adopted by the written consent of the shareholders having not less than the
minimum number of votes required by statute in accordance with Section 407 (1) of the Act.
Written notice to shareholders who have not consented in writing has been given. (Note:
Written consent by less than all of the shareholders is permitted only if such provision
appears in the Articles of Incorporation.) |
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þ |
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were duly adopted by the written consent of all the shareholders entitled to vote
in accordance with Section 407 (2) of the Act. |
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Signed this 28th day of August, 1992 |
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By
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/s/ Earl Mikolich |
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(Signature)
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EARL MIKOLICH (REGIONAL) VICE PRESIDENT |
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(Type or Print Name) (Type or Print Title) |
exv3w384
Exhibit 3.384
BY-LAWS
OF
CITIZENS DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be Citizens Disposal, Inc., c/o USA Waste Services, Inc., 1001 Fannin, Suite 4000, Houston, Texas
77002.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Michigan as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or without
the State of Michigan, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect directors
and transact such other business as may properly be brought before the meeting. Written notice of
each annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Special meetings of stockholders may be called by
the President or the Board of Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, (i) any question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat and (ii) each stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after
three (3) years from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholders
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors consisting of not
less than one director, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors then in office. At each
annual meeting of stockholders beginning with the first, successor directors shall be elected. Each
director shall hold office until the ensuing meeting and until such directors successor is elected
and qualified or until such directors earlier death, resignation, or removal.
Directors of the Corporation may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Corporations
Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by
the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of Michigan. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the President or any two directors. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the time of the meeting, by telephone, electronic facsimile or
telegram not less than twenty-four (24) hours before the time of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Corporations Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Corporations
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Corporations Certificate of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this Section 7 of this
Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required.
Section 9. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if
(i) the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The offices of the Corporation shall be chosen by the
Board of Directors and shall be a President and a Secretary. The Board of Directors, in its
discretion, may also choose one Treasurer and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Corporations Certificate of Incorporation or these
By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held after
each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries and other compensation of
all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. The President. The President shall be the chief executive officer
and the chief operating officer of the Corporation, shall have general direction of the business
and affairs of the Corporation and general supervision over its several officers, subject, however,
to the control of the Board of Directors and shall see that all orders and resolutions of the Board
of Directors are carried into effect. The President may sign, with the Secretary or Assistant
Secretary, certificates representing shares of stock of the Corporation. The President shall
execute and deliver, in the name and on behalf of the Corporation, (i) contracts or other
instruments authorized by the Board of Directors and (ii) contracts or instruments in the usual and
regular course of business except in cases when the execution and delivery thereof shall be
expressly delegated or permitted by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation, and, in general, shall perform all duties incident to the office of
President and such other duties as from time to time may be assigned to him by the Board of
Directors or as are prescribed by these Bylaws.
Section 5. Vice Presidents. Vice Presidents, if there be any, shall perform
such duties and may exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors. The Vice President may sign certificates of stock of the
Corporation. In the absence or disability of the President, a Vice President may preside at
meetings of the stockholders and the Board of Directors.
Section 6. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or the President. If the Secretary shall be
unable or shall refuse to cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board
of Directors or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 7. Treasurer. The Treasurer, if there be one, shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
Section 8. Assistant Secretaries. Except as may be otherwise provided in these
ByLaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the Secretary or in the event
of the Secretarys disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 9. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer.
Section 10. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or a Vice President and (ii) by the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such
owners legal representative, to advertise the same in such manner as the Board of Directors shall
require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, such notice may be given by mail, addressed to such director, member of
a committee or stockholder, at his address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given personally or by
electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, a waiver thereof in writing, signed, by the person or
persons entitled to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Corporations Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal, if there shall be one, shall be
in such form as the Board of Directors may prescribe.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such persons conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not
act in good faith and in a manner which such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer, of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be
made (i) by the Board of Directors by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (ii) if there are no such directors
or if such directors so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe such
persons conduct was unlawful, if such persons action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The term another enterprise as used in this Section 4 of this Article VIII shall mean
any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Michigan for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 of this Article VIII shall be
given to the Corporation promptly upon the filing of such application. If successful, in whole or
in part, the director or officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding may be
required by the Board of Directors to be paid (upon such terms and conditions, if any, as the Board
deems appropriate) by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in a persons official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 of Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Michigan, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against such person and incurred by him in any such capacity, or arising out of such
persons status as such, whether or not the Corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references
to the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors and officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this Article VIII with respect to the resulting
or surviving corporation as such indemnification relates to such persons acts while serving in any
of the foregoing capacities, of such constituent corporation, as such person would have with
respect to such constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to fines shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to serving at the request of
the Corporation shall include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best
interests of the Corporation as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Except as otherwise provided in the Corporations Certificate of
Incorporation, these By-Laws may be altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice
of such meeting of stockholders or Board of Directors as the case may be. Except as otherwise
provided in the Corporations Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w385
Exhibit 3.385
CORPORATION AND SECURITIES COMMISSION
LANSING, MICHIGAN
DO NOT WRITE IN SPACE BELOW FOR COMMISSION USE
ARTICLES OF INCORPORATION
These Articles of Incorporation are signed and acknowledged by the incorporators for the
purpose of forming a corporation for profit under the provisions of
Act No. 827 of the Public Acts
of 1981, as amended, as follows:
ARTICLE 1.
The name of the corporation is CITY - STAR SERVICES, INC.
ARTICLE II.
The
purpose or purposes for which the corporation is formed are as follows:
To engage in service business or bussinesses of all natures and to buy and sell as
brokers or wholesaleors or retailers, goods, wares and merchandise of all natures and to
conduct business of any other nature/which is legal under the Laws
and Statutes of the State of Michigan.
* in connection with the foregoing
[ILLEGIBLE]
ARTICLE III.
ARTICLE IV.
The name of the first resident name is HENRY ROY VALKEMA
ARTICLE V.
The total authorized capital stock is
[ILLEGIBLE]
No stock may be sold by an owner thereof until after
same is offered to existing shareholders at a pries and
on the terms either as endorsed upon the certificate at the
time of its issuance or in accordance with separate agreement
in writing entered into between all holders of shares of
stock of the corporation.
ARTICLE VI.
The name
and places of residence or business of each of the incorporators and the number and
class of shares [ILLEGIBLE] for by such are as follows. [ILLEGIBLE]
requires one or more
incorporation)
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Number of Shares |
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Residence of Business Address |
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Par Stock |
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Non-Par Stock |
Name |
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(No.) |
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(Street) |
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(City) |
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(State) |
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Common |
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Preferred |
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Common |
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Preferred |
Anna Valkema |
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2832 |
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Crestview |
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Kalamazoo |
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Michigan |
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293 |
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Henry Roy Valkema |
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5412 |
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East FG Avenue |
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Kalamazoo |
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Michigan |
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293 |
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Albert John Valkema |
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6418 |
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Oakland Drive |
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Kalamazoo |
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Michigan |
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293 |
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Evelyn Thelma Dean |
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3104 |
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Grace Road |
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Kalamazoo |
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Michigan |
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120 |
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Henry & Tillie Workman |
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1514 |
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North Church |
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Kalamazoo |
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Michigan |
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ARTICLE VII.
The names and address of the [ILLEGIBLE] board of directors are as follows:
[ILLEGIBLE]
requires at least three directors)
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Residence or Business Address |
Name |
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(No.) |
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(Street) |
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(City) |
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(State) |
Anna Valkema |
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2832 |
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Crestview |
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Kalamazoo |
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Michigan |
Henry Roy Valkema |
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5412 |
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East FG Avenue |
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Kalamazoo |
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Michigan |
Albert John Valkema |
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6418 |
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Oakland Drive |
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Kalamazoo |
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Michigan |
ARTICLE VIII.
[ILLEGIBLE]
ARTICLE IX.
OPTIONAL (Please delete Article IX if not applicable.)
[ILLEGIBLE]
ARTICLE X.
(Here insert any [ILLEGIBLE] additional provision authorized by the Act.)
We, the
incorporators, sign our names this 24th day of October 1966
(All
parties appearing under Article VI are required to sign in
this space)
Henry Roy Valkema
Henry Workman
Tillie Workman
Anna Valkema
Evalyn Thelma Dean
Albert John Valkema
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STATE OF MICHIGAN
COUNTY OF KALAMAZOO |
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[ILLEGIBLE] |
On this 24th day of October 1966
before me [ILLEGIBLE] appeared
Anna
Valkema, Evelyn Thelina Dean and Albert John Valkema
[ILLEGIBLE]
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/s/ [ILLEGIBLE] |
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[ILLEGIBLE] |
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MARGARET S. VANDENBERG |
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Print or Type name of Notary |
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MAIL THREE SIGNED AND ACKNOWLEDGED COPIES TO
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[ILLEGIBLE] |
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County |
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[ILLEGIBLE] |
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[ILLEGIBLE] |
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[ILLEGIBLE] My commission expired October 3, 1969. |
[ILLEGIBLE] |
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([ILLEGIBLE]) |
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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FILED |
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Date Received |
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NOV 1 1982 |
NOV 1 1982 |
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Administrator |
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MICHIGAN DEPARTMENT OF COMMERCE |
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Corporation & Securities Person |
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(See Instructions an Reverse Side)
Domestic Corporation into Domestic Corporation
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NOTE: |
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This form is prepared for use upon the merger of two domestic corporations. (If more than
two corporation are involved, change this form accordingly.) |
CERTIFICATE OF MERGER
OF
CITY-STAR SERVICES, INC.
(a Michigan corporation)
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INSERT CORPORATION IDENTIFICATION NUMBER |
0 |
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8 |
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7 |
6 |
AND
MICHIGAN RE-CYCLING CENTERS, INC.
(a Michigan corporation)
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INSERT CORPORATION IDENTIFICATION NUMBER |
0 |
4 |
1 |
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3 |
8 |
Pursuant to the provisions of Sections 701 to 707, Act 284, Public Acts of 1972, as amended, the
undersigned corporations execute the following certificate of merger:
ARTICLE ONE
The PLAN OF MERGER is as follows:
FIRST:
(a) The name of each constituent corporation is as follows:
City-Star Services, Inc.
Michigan Re-Cycling Centers, Inc.
(b) The name of the surviving corporation is City-Star Services, Inc.
SECOND: As to each constituent corporation, the (designation and number of outstanding shares
of each class and series and the voting rights thereof are as follows:
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Designation and |
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number of shares |
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Indicate class or |
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in each class or |
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series of shares |
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series entitled |
Name of corporation |
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series outstanding |
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entitled to vote |
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City-Star
Services, Inc. |
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999 common |
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common |
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None |
Michigan Re-Cycling
Centers, Inc. |
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100 common |
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common |
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None |
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(If number of shares is subject to change prior to effective date, state manner in which such change may occur.)
ARTICLE ONE.
(cont.)
THIRD:
The terms and conditions of the proposed merger, including the manner and basis of
converting the shares of each constituent corporation into shares, bonds or other securities of the
surviving corporation, or into cash or other consideration are as
follows:
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Michigan Re-Cycling Centers, Inc. will be merged into City-Star
Services, Inc. with City-Star Services, Inc. being the survivor. |
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2. |
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One additional share of City-Star Services, Inc. capital stock
will be issued. |
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3. |
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One-tenth share of City-Star Services, Inc. capital stock will be
delivered for each ten (10) shares of Michigan Re-Cycling Centers, Inc. |
FOURTH: (A statement of any amendment to the articles of incorporation of the surviving
corporation to be effected by the merger.)
No amendments will be made to the articles of incorporation of the
surviving corporation.
FIFTH: (A statement of other provisions with respect to the merger.)
None.
ARTICLE TWO.
(Use
Alternative A, and delete Alternative B, if Plan of Merger was approved by the shareholders of
each constituent corporation.)
(Use
Alternative B, and delete Alternative A, if pursuant to Section 704 the merger was
authorized without requiring approval of the shareholders of the surviving corporation.)
Alternative A.
The
plan of merger was adopted by the board of directors of each constituent corporation and
approved by the shareholders of said corporations in accordance with Sections 701 to 704.
ARTICLE THREE.
(Use this Article Three only if the plan of merger was approved by the shareholders of one or more
of the constituent corporations without a meeting, pursuant to Section 407.)
The plan of merger was adopted by the board of directors of
City-Star
Services, Inc., and Michigan Re-Cycling Centers, Inc.
(name of corporation)
and by
written notice to and written consent of the shareholders of said corporation in accordance
with Section 407.
ARTICLE FOUR.
(Use the
following Article Four only if an effective date, not later than
90 days after date of
filing is desired. A retroactive effective date is not permitted by statute.)
The
merger shall be effective on the 1st day of November, 1982.
Signed this 29th day of October, 1982
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City-Star Services, Inc. |
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(Name of surviving Corporation) |
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BY
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/s/ H. Roy Valkema |
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(Signature of Chairperson or Vice-Chairperson
or the President or Vice-President) |
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H. Roy Valkema, President |
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(Type or Print name and title) |
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Michigan Re-Cycling Centers, Inc. |
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(Name of Merged Corporation) |
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BY
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/s/ H. Roy Valkema |
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(Signature of Chairperson or Vice-Chairperson
or the President or Vice-President) |
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H. Roy Valkema, President |
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(Type or print name and title) |
CERTIFICATE OF INCORPORATION
OF
ALLIED WASTE CITY STAR, INC.
1. The name of the corporation is ALLIED WASTE CITY STAR, INC. (the Corporation).
2. The address of the registered office of the Corporation in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of
New Castle. The name of its registered agent at such address is The Corporation Trust
Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the State of
Delaware (the DGCL),
4. The Corporation shall have authority to issue One Thousand (1,000) common shares
and the par value of each of such shares is No Dollars and One Cents ($0.01) amounting
in the aggregate to Ten Dollars and Zero Cents ($10).
5. The name and mailing address of the incorporator are as follows:
Steven M. Helm
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
James Eng
G. Thomas Rochford, Jr.
Donald W. Slager
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors shall have the power to make, alter, amend, change, add to or repeal
the bylaws of the Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director of the
benefits hereof with respect to any act or omission occurring prior to such amendment or repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its creditors
or any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation, as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 31st day of July, 1998.
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/s/ Steven M. Helm
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Steven M. Helm, Incorporator |
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2
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
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Date Received
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(FOR BUREAU USE ONLY) |
AUG 17 1998
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ADJUSTED PURSUANT TO |
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TELEPHONE AUTHORIZATION |
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[ILLEGIBLE] |
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FILED |
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AUG 17 1998 |
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PH.
517-663-2525 Ref # 85171 |
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Attn: Cheryl J. Bixby
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Administrator |
MICHIGAN RUNNER SERVICE
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MI DEPARTMENT OF CONSUMER & INDUSTRY SERVICES |
P.O. Box 266
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CORPORATION SECURITIES & LAND DEVELOPMENT BUREAU |
Eaton Rapids, MI. 48827-0266
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EFFECTIVE DATE:
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é Document will be returned to the name and address you enter above
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CERTIFICATE OF MERGER / CONSOLIDATION
For use by Domestic Profit and/or NonProfit Corporations
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), and/or Act
162, Public Acts of 1982 (nonprofit corporations), the undersigned corporations execute the
following Certificate:
1. |
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The Plan of Merger (Consolidation) is as follows: |
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The name of each constituent corporation and its identification number is: |
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City-Star Services, Inc.
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048275 |
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Allied Waste City Star, Inc. |
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b.
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The name of the surviving (new) corporation and its identification number is: |
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City-Star Services, Inc.
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048275 |
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c. |
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For each constituent stock corporation, state: |
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Designation and |
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number of outstanding |
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Indicate class or |
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Indicate class or |
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shares in each class |
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series of shares |
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series entitled |
Name of corporation |
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or series |
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entitled to vote |
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to vote as a class |
City - Star Services, Inc.
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587 common
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common
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n/a |
Allied Waste City Star, Inc.
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1,000 common
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common
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n/a |
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If the number of shares is subject to change prior to the effective date of the merger or
consolidation, the manner in which the change may occur is as follows:
[ILLEGIBLE]
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(Complete for any profit corporation only) |
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a. |
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The manner and basis of converting shares are as follows: |
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The outstanding shares of the surviving corporation will remain outstanding and the
outstanding shares of the nonsurviving corporation will be cancelled. |
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The amendments to the Articles, or a restatement of the Articles, of the surviving
corporation to be effected by the merger are as follows:
none |
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The plan of merger will be furnished by the surviving profit corporation, on request and
without cost, to any shareholder of any constituent profit corporation. |
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(Complete for any nonprofit corporation only) |
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If it is organized on a membership basis, state (a) the name of the corporation, (b) a
description of its members, and (c) the number, classification and voting rights of its members. |
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b) |
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If it is organized on a directorship basis, state (a) the name of the corporation, (b) a
description of the organization of its board, and (c) the number, classification and voting
rights of its directors. |
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c) |
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State the terms and conditions of the proposed merger or consolidation, including the manner
and basis of converting the shares of, or membership or other interests in, each constituent
corporation into shares, bonds, or other securities of, or membership or other interest in, the
surviving or consolidated corporation, or into cash or other consideration. |
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If a consolidation, the Articles of Incorporation of the consolidated corporation are
attached to this Certificate and are incorporated herein. If a merger, the amendments to the
Articles, or a restatement of the Articles, of the surviving corporation to be effected by the
merger are as follows: |
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e) |
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Other provisions with respect to the merger (consolidation) are as follows: |
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(Complete for any foreign corporation only) |
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This merger (consolidation) is permitted by the laws of the state of |
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the jurisdiction under which
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Allied Waste City Star, Inc. |
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(name of foreign corporation)
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is organized and the plan of merger (consolidation) was adopted and approved by soon corporation
pursuant to and in accordance with the laws of that jurisdiction. |
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(Complete only if an effective date is desired other than the date of filing. The date must be
no more than 90 days after receipt of this document in this office.) |
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The merger (consolidation) shall be effective on the day of 19
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TO BE COMPLETED BY MICHIGAN PROFIT CORPORATIONS ONLY (Complete either part a or b for each
corporation.) |
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The plan of merger was approved by the unanimous consent of the incorporators of,
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Michigan corporation which has not commenced business, has not issued any shares, and has
not elected a Board of Directors. |
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(Signature of Incorporator)
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(Signature of Incorporator) |
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(Signature of Incorporator)
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(Signature of Incorporator) |
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The plan of merger was approved by |
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the Board of Directors of ___, the surviving Michigan corporation, without approval of the
shareholders in accordance with Section 701 of the Act. |
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the Board of Directors and the shareholders of the following Michigan corporation(s) in
accordance with Section 703a of the Act: |
CITY-STAR SERVICES, INC.
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CITY-STAR SERVICES. INC. |
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ALLIED WASTE CITY STAR, INC. |
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(Name
of Corporation)
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(Name of Corporation) |
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/s/ Henry A. Valkema
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By
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/s/ Thomas A. Kehoe |
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(Signature of President, Vice-President,
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(Signature of President, Vice-President, |
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Chairperson or Vice-Chairperson)
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Chairperson or Vice-Chairperson) |
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Henry A. Valkema, President
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Thomas A. Kehoe, Vice President and Secretary |
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(Type or Print Name and Title)
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(Type or Print Name and Title) |
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TO BE COMPLETED BY MICHIGAN NONPROFIT CORPORATIONS ONLY |
The plan of merger or consolidation was approved by
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the Board of Directors and shareholders or members of the following Michigan corporation(s)
in accordance with Sections 701 and 703(1) and (2) of the Act: |
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the Board of Directors of the following Michigan corporation(s) organized on a directorship
basis in accordance with Section 703(3) of the Act: |
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(Name of Corporation)
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(Name of Corporation) |
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By
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By
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(Signature of President, Vice-President,
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(Signature of President, Vice-President, |
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Chairperson or Vice-Chairperson)
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Chairperson or Vice-Chairperson) |
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(Type or Print Name and Title)
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(Type or Print Name and Title) |
AGREEMENT AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (Agreement), is made and entered into this 14th day
of August, 1998, to be effective 12:01 a.m., August 16, 1998, by and among ALLIED WASTE INDUSTRIES,
INC., a Delaware corporation, (Allied), ALLIED WASTE CITY STAR, INC., a Delaware corporation and
a wholly-owned subsidiary of Allied (Sub A), ALLIED WASTE EAGLE INDUSTRIES, INC., a Delaware
corporation and a wholly-owned subsidiary of Allied (Sub B), ALLIED WASTE ROYAL HOLDINGS, INC., a
Delaware corporation and a wholly-owned subsidiary of Allied (Sub C) (Sub A, Sub B, and Sub C
shall sometimes be collectively referred to herein as the Subs). CITY-STAR SERVICES, INC., a
Michigan corporation (Company A), EAGLE INDUSTRIES LEASING, INC. (Company B), ROYAL HOLDINGS,
INC., a Michigan corporation (Company C) (Company A, Company B, and Company C shall sometimes be
collectively referred to herein as Companies), and HENRY A. VALKEMA (the Shareholder).
WHEREAS, the respective Boards of Directors of Allied, Subs and Companies have approved the
mergers of: (i) Sub A with and into Company A; (ii) Sub B with and into Company B; and (iii) Sub C
with and into Company C;
WHEREAS, to effect such transactions, the respective Boards of Directors of Allied, Subs and
Companies, and Allied acting as sole stockholder of Subs, approved the mergers of (i) Sub A with
and into Company A; (ii) Sub B with and into Company B; and (iii) Sub C with and into Company C
(the Mergers), pursuant to the terms and subject to the conditions of this Agreement, whereby all
of the issued and outstanding shares of common
August 14, 1998
stock, $1.00 par value, of the Companies (the Shares of the Shareholder), not owned
directly or indirectly by Allied or directly or indirectly by the Companies, will be exchanged for
the Shares of Allied (as hereinafter defined);
WHEREAS, Allied intends to transfer the Shares of the Shareholder to its wholly-owned
subsidiary ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation (AWNA) after the Effective
Time (as hereinafter defined); and
WHEREAS, Allied, Subs, Companies and Shareholder desire to make certain representations,
warranties and agreements in connection with the Mergers, and also to prescribe various conditions
to the Mergers, including but not limited to covenants-not-to-compete.
NOW, THEREFORE, in consideration of the premises and the representations, warranties and
agreements herein contained, the parties hereto agree to effect the Mergers on the terms and
subject to the conditions herein described and further agree as follows:
ARTICLE I
The Mergers
Section 1.1 Effective Time of the Mergers. Subject to the provisions of this Agreement,
articles of merger (the Articles of Merger) shall be prepared, executed and acknowledged by the
respective Surviving Corporation (as defined in Section 1.2) and thereafter delivered to the
Michigan Secretary of State for filing, as provided in the Michigan Business Corporation Act (the
Michigan Act), as soon as practicable on or after the Closing (as hereinafter defined). The
Mergers shall become effective upon the filing of the Articles
August 14, 1998
2
of Merger with the Michigan Secretary of State, or at such time thereafter as is provided in
the Articles of Merger (the Effective Tune).
Section 1.2 Effects of the Mergers.
(a) Companies and Subs shall sometimes be referred to herein as the
Constituent Corporations, and Companies shall sometimes be referred to herein as
the Surviving Corporations. Company A shall sometimes be referred to herein as
Surviving Corporation A, Company B shall sometimes be referred to herein as
Surviving Corporation B and Company C shall sometimes be referred to herein as
Surviving Corporation C.
(b) At the Effective Time: (i) the separate existence of Sub A shall cease and
Sub A shall be merged with and into Company A; (ii) the Articles of Incorporation
of Sub A as in effect immediately prior to the Effective Time shall be the Articles of
Incorporation of Surviving Corporation A until thereafter amended; (iii) the Bylaws
of Surviving Corporation A as in effect immediately prior to the Effective Time shall
be the Bylaws of Surviving Corporation A until thereafter amended; (iv) the duly
elected and incumbent Board of Directors of Sub A as constituted immediately prior
to the Effective Time shall be the Board of Directors of Surviving Corporation A, and
shall serve until the annual meeting of stockholders of the Surviving Corporation A
next following the Effective Time; and (v) the duly elected and incumbent officers of
Sub A as in office immediately prior to the Effective Time shall be the officers of
Surviving Corporation A and shall serve until the Board of Directors of Surviving
Corporation A takes action in respect of such service.
August 14, 1998
3
exv3w386
Exhibit 3.386
BYLAWS
OF
ALLIED WASTE CITY STAR, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the State of Delaware as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at such meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the
votes entitled to be cast by the holders of all the then issued and outstanding shares of common
stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or without the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with attached at Board stockholder
meetings, and shall receive such other compensation as determined by the stockholders from time to
time by majority vote.
Section 10. Interested Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if (i) the material facts as to his
or their relationship or interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of
the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Written notice may also be
given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words Corporate Seal,
Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock
holders or disinterested directors or pursuant to the direction (howsoever embodied) of any court
of competent jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w387
Exhibit 3.387
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR
BUREAU USE ONLY)
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Date Received |
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RECEIVED |
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FEB 26 1993 |
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Michigan Dept. of Commerce |
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Corporation & Securities Bureau |
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RESTATED ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
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Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned
corporation executes, the following Articles: |
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The present name of the corporation is: Clarkston Disposal, Inc. |
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The corporation identification number (CID) assigned by the Bureau is: 4 7 4 0 5 5 |
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All former names of the corporation are: Clarkston Disposal, Inc. |
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The date of filing the original Articles of Incorporation was: 4/28/89 |
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The following Restated Articles of Incorporation supersede the Articles of Incorporation as
amended and shall be the Articles of Incorporation for the corporation: |
ARTICLE I
The name of the corporation is: Clarkston Disposal, Inc.
ARTICLE II
The purpose or purposes for which the corporation is organized are: to engage in any activity
within the purposes for which corporations may be formed under the Business Corporation
Act of Michigan.
ARTICLE III
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The total authorized capital stock is: |
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1.
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Common shares
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Par Value Per Share $ |
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Preferred shares
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Par Value Per Share $ |
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and/or shares without par value as follows: |
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2.
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Common shares
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10.000
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Stated Value Per Share $ 1.00 |
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Preferred shares
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Stated Value Per Share $ |
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A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: |
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ARTICLE IV
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The address of the current registered office is: c/o THE CORPORATION COMPANY, |
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615 Griswold Street
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Detroit
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48226 |
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(Street Address)
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(City)
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(ZIP Code)
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The mailing address of the current registered office if different than above: |
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(P.O. Box)
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The name of the current resident agent is: The Corporation Company |
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ARTICLE V (Optional. Delete if not applicable.)
When a compromise or arrangement or a plan of reorganization of this corporation is proposed
between this corporation and its creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of this corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of
creditors or of the shareholders or class of shareholders to be affected by the proposed
compromise or arrangement or reorganization, to be summoned in such manner as the court directs.
If a majority in number representing
3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise or arrangement or
a reorganization, agree to a compromise or arrangement or a reorganization of this corporation as
a consequence of the compromise or arrangement, the compromise or arrangement and the
reorganization, if sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this corporation.
ARTICLE VI (Optional. Delete if not applicable.)
Any action required or permitted by the act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented in writing.
ARTICLE VII (Additional provisions, if any, may be inserted here; attach additional pages if needed.)
The written consents shall bear the date of signature of each shareholder who signs the
consent. No written consents shall be effective to take the corporate action referred
to unless, within 60 days after the record date for determining shareholders entitled
to express consent to or to dissent from a proposal without a meeting, written consents
signed by a sufficient number of shareholders to take the action are delivered to the
corporation. Delivery shall be to the corporations registered office, its principal
place of business.
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COMPLETE SECTION (a) IF THE RESTATED ARTICLES WERE ADOPTED BY THE UNANIMOUS CONSENT OF
THE INCORPORATORS BEFORE THE FIRST MEETING OF THE BOARD OF DIRECTORS;
OTHERWISE, COMPLETE
SECTION(b) |
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a. o |
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These Restated Articles
of Incorporation were duly adopted on the day of
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19 , in accordance with the provisions of Section 642 of the Act by the unanimous consent of the incorporators before the
first meeting of the Board of Directors. |
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Signed this day of
, 19 |
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(Signatures of all
incorporators; type or print name under each signature)
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b. þ |
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These Restated Articles of Incorporation were duly adopted on the day of , 19 , in accordance with the provisions of Section 642 of the Act and: (check one of the following) |
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were duly adopted by the Board of Directors without a vote of
the shareholders. These Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Articles of
Incorporation as heretofore amended and there is no material discrepancy between
those provisions and the provisions of these Restated Articles. |
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were duly adopted by the shareholders. The necessary number
of shares as required by statute were voted in favor of these Restated Articles. |
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were duly adopted by the written consent of the shareholders
having not less than the minimum number of votes required by statute in
accordance with Section 407(1) and (2) of the Act. Written notice to
shareholders who have not consented in writing has been given. (Note: Written
consent by less than all of the shareholders is permitted only if such provision
appears in the Articles of Incorporation.) |
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were duly adopted by the written consent of all the shareholders
entitled to vote in accordance with Section 407(3) of the Act. |
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Signed this 24th day of
February, 1993 |
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CLARKSTON DISPOSAL, INC. |
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By
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/s/ James S. Eng
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(Signature) |
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James S. Eng, Vice President
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(Type or Print Name and Title) |
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ARTICLE VII (CONTINUED).
or an officer or agent of the corporation having custody of the minutes of the proceedings of its
shareholders. Delivery made to a corporations registered office shall be by hand or by certified
or registered mail, return receipt requested.
ARTICLE VIII.
No director of the corporation shall be personally liable to the corporation or its
shareholders for monetary damages or for a breach of the directors fiduciary duty.
MICHIGAN DEPARTMENT COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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FILED
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Date Received |
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APR 28 1989
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APR 28 1989 |
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Administrator |
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Michigan Dept. of Commerce |
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EFFECTIVE DATE:
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Corporation & Securities Bureau
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CORPORATION IDENTIFICATION NUMBER 4 7 4 0 5 5
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ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned corporation executes the following Articles:
Article I
The name of the corporation is:
CLARKSTON DISPOSAL, INC.
Article II
The purpose or purposes for which the corporation is organized is to engage in any activity within the purposes for which corporations
may be organized under the Business Corporation Act of Michigan.
Article III
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The total authorized capital stock is: |
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1.
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Common shares
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50,000
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Par Value Per Share $ 1.00 |
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Preferred Shares
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Par Value Per Share $ |
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and/or shares without par value as follows: |
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2.
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Common Shares
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Stated Value Per Share $ |
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Preferred Shares
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Stated Value Per Share $ |
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3. |
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A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: |
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Article IV
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The address of the registered office is: |
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6751 DIXIE HIGHWAY, CLARKSTON
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Michigan
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48016 |
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(Street Address)
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(City)
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2. |
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The mailing address of the registered office if different than above: |
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Michigan
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The name of the
resident agent at the registered office is: RICHARD T. DETKOWSKI |
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Article V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
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Name
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Residence or Business Address |
RICHARD T. DETKOWSKI
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6671 EAST LAWN CLARKSTON, MICHIGAN 48016 |
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Article VI (Optional. Delete if not applicable)
Any action required or permitted by the Act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, is signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented
in writing.
Use space below for additional Articles or for continuation of previous Articles. Please identify
any Article being continued or added. Attach additional pages if needed.
ARTICLE VII
A director of the corporation is not personally liable to the corporation or its
shareholders for monetary damages for a beach of the directors fiduciary duty. However, the
provision does not eliminate or limit the liability of a director for any of the following:
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A breach of the directors duty of loyalty to the corporation or its shareholders. |
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Acts or omissions not in good faith or that involve intentional misconduct or
knowing violation of law. |
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A transaction from which the director derived an improper personal benefit. |
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an act or omission occurring before the filing of these articles of incorporation. |
I (We), the incorporator(s) sign my (our) name(s) this 27 day of April, 1989.
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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Date Received |
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RECEIVED |
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FEB 26 1993 |
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Michigan Dept. of Commerce |
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Corporation & Securities Bureau |
CERTIFICATE OF MERGER/CONSOLIDATION
For use by Domestic or Foreign Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant
to the provisions of Act 284, Public Acts of 1972, as amended (profit
corporations), and/or Act 162 Public Acts of 1982 (nonprofit corporations), the undersigned
corporations execute the following Certificate
1. The Plan of Merger (Consolidation) is as follows:
a. The name of each constituent corporation and its corporation identification number (CID)
is:
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Clarkston Disposal, Inc.
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4 7 4 0 5 5 |
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Sanifill/RTD Acquisition. Inc
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5 1 5 6 9 5 |
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b. The name of the surviving (new) corporation and its corporation identification number (CID) is:
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Clarkston Disposal, Inc.
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4 7 4 0 5 5 |
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c. For each constituent stock corporation, state:
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Designation and |
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number of outstanding |
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Indicate class or |
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Indicate class or |
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shares in each class |
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series of shares |
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series entitled |
Name of corporation |
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or series |
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entitled to vote |
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to vote as a class |
Clarkston Disposal,
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1,282 shares,
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N/A
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N/A |
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Inc.
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Common Stock |
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Sanifill/RTD
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500 shares
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N/A
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N/A |
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Acquisition, Inc.
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Common Stock |
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If the number of shares is subject to change prior to the effective date of the merger
or consolidation, the manner in which the change may occur is as follows:
N/A
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The terms and conditions of the proposed merger including the manner and basis o
converting the shares of, or membership or other interests in, each constituent corporation
into shares bonds, or other securities of, or membership or other interest in, the surviving
corporation, o into cash or other consideration, are as follows: |
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Please see attached Exhibit A. |
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If a merger, the amendments to the Articles, or a restatement of the
Articles, of the surviving corporation to be effected by the merger are as follows: |
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Please see attached Exhibit A. |
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Other provisions with respect to the merger
are as follows: |
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Please see attached Exhibit A. |
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(For profit corporations only)
The plan of merger or consolidation was adopted by the Board of Directors of the following
constituer corporations: |
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Clarkston Disposal, Inc. and
Sanifill/RTD Acquisition, Inc. |
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and was approved by the shareholders of those corporations in accordance with Sections 701
to 704, of pursuant to Section 407 by written consent and written notice, if required by that
section. |
Sign this area for item 4(a).
Signed this day of , 19
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Sign this area for items 4(b), 4(c), or 4(d).
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Signed this 25th day of February , 1993 |
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CLARKSTON DISPOSAL, INC. |
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(name of Corporation) |
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By
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Richard T. Detkowski |
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(Signature) |
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Richard T. Detkowski, President |
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(Type or print Name and Title) |
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Signed this 24th day of February, 1993 |
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SANIFILL/RTD
ACQUISITION, INC. |
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(Name of Corporation) |
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By
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/s/ James S. Eng |
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(Signature) |
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James S. Eng |
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Vice President |
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(Type or Print Name and Title) |
EXHIBIT A
This Exhibit sets forth certain information regarding the merger (the Merger) of
Sanifill/RTD Acquisition, Inc.
(Acquisition) with and into Clarkston Disposal, Inc.
(Disposal or the Surviving Corporation). The Merger has been approved and authorized by the
Boards of Directors of Acquisition, Disposal and Sanifill, Inc., a Delaware corporation which owns
all of the issued and outstanding capital stock of Acquisition (Sanifill), and will occur
pursuant to the terms and conditions of the Agreement and Plan of Reorganization, dated as of
February 26, 1993 (the Plan), among Acquisition, Disposal and the shareholders of Disposal (the
Shareholders), which terms and conditions are summarized in this Exhibit. All section references
in this Exhibit are to sections of this Exhibit.
1. Merger.
As of the Effective Date (as defined in Section 5 below) of the Merger, Acquisition shall
merge with and into the Surviving Corporation and the separate existence of Acquisition shall
cease. The Merger will be effected in a single transaction.
2. Articles of Incorporation; Bylaws; Officers, etc.
(a) As of the Effective Date, the Articles of Incorporation of the Surviving Corporation shall
be amended and restated to take the form of the Articles of Incorporation of Acquisition (prior to
the Merger), except that the corporate name of the Surviving Corporation shall not be changed.
(b) As of the Effective Date, the form of the Bylaws of Acquisition (prior to the Merger)
shall become the Bylaws of the Surviving Corporation.
(c) The directors and officers of Acquisition immediately prior to the Effective Date shall
become the officers of the Surviving Corporation, and shall hold such offices subject to the
provisions of the laws of the State of Michigan and the Articles of Incorporation and the Bylaws of
the Surviving Corporation.
3. Manner of Merger.
The manner of carrying the Merger into effect shall be as follows:
(a) As of the Effective Date, the shares of common stock of Disposal, $1.00 par value per
share (the Disposal Stock), issued and outstanding immediately prior to the Effective Date shall
be converted into shares of common stock of Sanifill, $0.01 par value per share (the Sanifill
Stock), as follows:
(1) All of the shares of Disposal Stock issued and outstanding immediately prior to
the Effective Date, shall,
by virtue of the Merger and without any action on the part of the holder thereof,
automatically be converted into approximately 306,859 shares of Sanifill Stock to be
distributed to the Shareholders on a pro rata basis in accordance with their current
ownership of Disposal Stock.
(2) Each share of Common Stock of Acquisition issued and outstanding immediately prior
to the Effective Date, shall, by virtue of the Merger and without any action on the part of
the holder thereof, automatically be converted into one fully paid and non-assessable share
of stock of the Surviving Corporation which shall constitute all of the outstanding shares
of the Surviving Corporation immediately after the Effective Date.
4 . Transfer of Shares.
(a) On the Effective Date, the Shareholders, as the holders of certificates representing all
outstanding shares of Disposal Stock, shall, upon surrender of such certificates, be entitled to
receive the number of shares of Sanifill Stock set forth in Section 3(a)(l) above.
(b) On the Effective Date, the Shareholders shall deliver the certificates representing all
outstanding shares of Disposal Stock, duly endorsed in blank by the Shareholders or accompanied by
blank stock powers and with all necessary transfer tax and other revenue stamps, acquired at the
Shareholders expense, affixed and cancelled. The Shareholders agree to cure any deficiencies with
respect to the endorsement of the certificates and other documents of conveyance with respect to
such Disposal Stock or with respect to the stock powers accompanying any Disposal Stock.
5. Effective Date.
The Merger shall become effective on February 26, 1993. Such date shall be the Effective
Date.
-2-
exv3w388
Exhibit 3.388
BY-LAWS
OF
CLARKSTON DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be Clarkston Disposal, Inc., c/o USA Waste Services, Inc., 1001 Fannin, Suite 4000, Houston, Texas
77002.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Michigan as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Michigan, as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect directors
and transact such other business as may properly be brought before the meeting. Written notice of
each annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Special meetings of stockholders may be called
by the President or the Board of Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, (i) any question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat and (ii) each stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after
three (3) years from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholders
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors consisting of not
less than one director, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors then in office. At each
annual meeting of stockholders beginning with the first, successor directors shall be elected.
Each director shall hold office until the ensuing meeting and until such directors successor is
elected and qualified or until such directors earlier death, resignation, or removal.
Directors of the Corporation may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the
Corporations Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of Michigan. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the President or any two directors. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the time of the meeting, by telephone, electronic facsimile or
telegram not less than twenty-four (24) hours before the time of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Corporations Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Corporations
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Corporations Certificate of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this Section 7 of this
Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required.
Section 9. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed like compensation
for attending committee meetings.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if
(i) the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be
less than a quorum; or (ii) the material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The offices of the Corporation shall be chosen by the
Board of Directors and shall be a President and a Secretary. The Board of Directors, in its
discretion, may also choose one Treasurer and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Corporations Certificate of Incorporation or these
By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held after
each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries and other compensation of
all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. The President. The President shall be the chief executive officer
and the chief operating officer of the Corporation, shall have general direction of the business
and affairs of the Corporation and general supervision over its several officers, subject,
however, to the control of the Board of Directors and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The President may sign, with the Secretary or
Assistant Secretary, certificates representing shares of stock of the Corporation. The President
shall execute and deliver, in the name and on behalf of the Corporation, (i) contracts or other
instruments authorized by the Board of Directors and (ii) contracts or instruments in the usual
and regular course of business except in cases when the execution and delivery thereof shall be
expressly delegated or permitted by the Board of Directors or by these Bylaws to some other
officer or agent of the Corporation, and, in general, shall perform all duties incident to the
office of President and such other duties as from time to time may be assigned to him by the Board
of Directors or as are prescribed by these Bylaws.
Section 5. Vice Presidents. Vice Presidents, if there be any, shall perform
such duties and may exercise such other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors. The Vice President may sign certificates of stock of
the Corporation. In the absence or disability of the President, a Vice President may preside at
meetings of the stockholders and the Board of Directors.
Section 6. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or the President. If the Secretary shall be
unable or shall refuse to cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board
of Directors or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 7. Treasurer. The Treasurer, if there be one, shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his transactions as
Treasurer and of the financial condition of the Corporation.
Section 8. Assistant Secretaries. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the
event of the Secretarys disability or refusal to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 9. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer.
Section 10. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or a Vice President and (ii) by the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owners
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of
the Corporation only by the person named in the certificate or by his attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, which shall be canceled
before a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member
of a committee or stockholder, such notice may be given by mail, addressed to such director,
member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Written notice may also be given
personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member
of a committee or stockholder, a waiver thereof in writing, signed, by the person or
persons entitled to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Corporations Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal, if there shall be one, shall
be in such form as the Board of Directors may prescribe.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such persons conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer, of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (ii) if there are no such directors
or if such directors so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe such
persons conduct was unlawful, if such persons action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The term another enterprise as used in this Section 4 of this Article VIII shall mean
any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Michigan for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 of this Article VIII shall be
given to the Corporation promptly upon the filing of such application. If successful, in whole or
in part, the director or officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding may be
required by the Board of Directors to be paid (upon such terms and conditions, if any, as the
Board deems appropriate) by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in a persons official capacity
and as to action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any person who is not specified in Section 1 of
Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Michigan, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against such person and incurred by him in any such capacity, or arising
out of such persons status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions of this Article
VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references
to the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors and officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this Article VIII with respect to the resulting
or surviving corporation as such indemnification relates to such persons acts while serving in any
of the foregoing capacities, of such constituent corporation, as such person would have with
respect to such constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to fines shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to serving at the request of
the Corporation shall include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best
interests of the Corporation as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Except as otherwise provided in the Corporations Certificate of
Incorporation, these By-Laws may be altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice
of such meeting of stockholders or Board of Directors as the case may be. Except as otherwise
provided in the Corporations Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w389
Exhibit 3.389
PARTNERSHIP AGREEMENT
OF
CLINTON COUNTY LANDFILL PARTNERSHIP
This Partnership Agreement is entered into as of March 9, 2004, between Allied Waste North
America, Inc., a Delaware corporation, and Allied Waste Landfill Holdings, Inc., a Delaware
corporation, each individually referred to herein as a Partner, and collectively as Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Clinton County Landfill Partnership, an
Indiana general partnership. The name of the Partnership may be changed upon the consent of the
Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880 North
Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050, unless
the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described
in Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to
the Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of such Partners Capital Account without
the written consent of the other Partner. Under circumstances requiring a return of capital, no
Partner shall have the right to receive property other than cash, except as may be specifically
provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans ( Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of
the Partners. No Partner shall be required to make a Partner Loan unless such Partner has
agreed in writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the Partners
in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-1(b) and
1.704-2. If the Partnership incurs nonrecourse deductions or partner nonrecourse deductions,
or if there is any change in the Partnerships minimum gain, as defined in such Regulations,
the allocation of Profits, Losses and items thereof to the Partners shall be modified in a
reasonable manner deemed necessary or advisable by the Partners, upon appropriate legal or tax
advice, to comply with such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority
in Interest of the Partners. The Partners shall devote such time and effort as is necessary for
the management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the
Partnership in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall
coordinate with the Partnerships accountants the preparation of tax information and tax returns
relating to the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge,
hypothecation or other disposition of a Partnership interest in violation of this Section 8 shall
be void and shall not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The expiration of the term of the Partnership as set forth herein, unless that term is
extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and
liabilities and the establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital contributions
and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered personally to
the Partner to whom the same is directed, or sent by regular, registered or certified mail, return
receipt requested, addressed as follows: if to the Partnership, to the Partnership at the address
set forth in Section 1.5 hereof, or to such other address as the Partnership may from time to time
specify by notice to the Partners in accordance with this Section 10.1, or, if to a Partner, to
such Partner at the address for such Partner set forth below the Partners name on Exhibit A, or to
such other address as the Partner may from time to time specify by notice to the Partnership in
accordance with this Section 10.1. Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date so delivered, if delivered personally
or if sent by regular mail, or as of the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, if sent by registered or certified
mail, postage and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that
it may have to maintain any action for partition with respect to any of the Partnerships
property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All counterparts
shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended from
time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words
such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained
for such Partner in accordance with Code Section 704(b) and Regulations promulgated thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Majority in Interest of the Partners means Partners owning a simple majority of
the Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources,
less the portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt
payments, (3) contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and
any other Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment
adopted in accordance with Section 7 hereof. Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any
Partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement.
The Partners Percentage Interests are set forth opposite their names on Exhibit A attached
hereto.
Person means any individual, partnership, corporation, trust, limited liability
company or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Partnerships taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), adjusted as deemed necessary by the Partners to comply with Code Section 704(b) and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.
a Delaware corporation |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation |
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By:
Its:
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/s/ D. W. Slager
Vice President, Operations
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By:
Its:
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/s/ Jo Lynn White
Secretary
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
Allied Waste North America, Inc.
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99 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w390
Exhibit 3.390
CERTIFICATE OF INCORPORATION
OF
COCOPAH LANDFILL, INC.
1. The name of the Corporation is Cocopah Landfill, Inc. (the Corporation).
2. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at that address is The Corporation Trust Company.
3. The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares, one cent
($0.01) par value.
5. The
name and mailing address of the incorporator are as follows:
D. W. Slager
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
D. W. Slager
James Eng
G. Thomas Rochford, Jr.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by stature, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the Corporation
shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under
the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director of the
benefits hereof with respect to any act or omission occurring prior to such amendment or repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its creditors
or any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporations or of any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8 of the Delaware code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provision of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization
of the Corporation, as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 4th day of November, 1999.
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/s/ D. W. Slager
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D. W. Slager, Incorporator |
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2
exv3w391
Exhibit 3.391
BYLAWS
OF
COCOPAH LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
1
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is
present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action bv Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without
the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
exv3w392
Exhibit 3.392
CERTIFICATE OF INCORPORATION
OF
REPUBLIC INDUSTRIES COMPACTOR RENTAL, INC.
* * * * *
1. The name of the corporation is Republic Industries Compactor Rental, Inc.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any
lawful act or activity for which corporations may be organized under the General Corporation Law of
Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is
One Thousand (1,000) and the par value of each of such shares is Zero Dollars and One Cent ($0.01)
amounting in the aggregate to Ten Dollars and No Cents ($10.00).
5. The board of directors is authorized to make, alter or repeal the bylaws of the
corporation. Election of directors need not be by written ballot.
6. The name and mailing address of the sole incorporator is:
Laura Vitalo
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
7. A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director except for liability
(i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section l74 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper personal benefit.
8. The corporation shall indemnify its officers, directors, employees and agents to the extent
permitted by the General Corporation Law of Delaware.
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, do make this
certificate, hereby declaring and certifying that this is my act
and deed and the facts herein stated are true, and accordingly have hereunto set my hand this
29th day of January, 1997.
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/s/ Laura Vitalo
Laura Vitalo,
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Sole Incorporator |
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Page 1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
* * * * *
Republic Industries Compactor Rental, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
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DOES HEREBY CERTIFY: |
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FIRST:
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That the Board of Directors of said corporation, by the unanimous written consent of
its members, filed with the minutes of the Board, adopted a resolution proposing and
declaring advisable the following amendment to the Certificate of Incorporation
of said
corporation: |
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RESOLVED, that the Certificate of Incorporation of Republic Industries Compactor
Rental, Inc. be amended by changing the First Article thereof so that, as amended,
said
Article shall be and read as follows: |
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The name of the corporation is Compactor Rental Systems of Delaware, Inc. |
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SECOND:
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That in lieu of a meeting and vote of stockholders, the stockholders have given
unanimous written consent to said amendment in accordance with the provisions of
Section 228 of the General Corporation Law of the State of Delaware. |
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THIRD:
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That the aforesaid amendment was duly adopted in accordance with the applicable
provisions of Sections 242 and 228 of the General Corporation Law of the State of
Delaware. |
IN WITNESS
WHEREOF, said Republic Industries Compactor Rental, Inc. has caused
this certificate to be signed by Richard L. Handley, its Secretary, this 12th day of February,
1997.
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REPUBLIC INDUSTRIES COMPACTOR RENTAL, INC. |
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By
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/s/ Richard L. Handley
Secretary
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exv3w393
Exhibit 3.393
AMENDED AND RESTATED BYLAWS
OF
COMPACTOR RENTAL SYSTEMS OF DELAWARE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
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or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or
destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be
deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10.
Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w394
Exhibit 3.394
CERTIFICATE OF FORMATION
OF
L.A. COUNTY, LLC
1. The name of the limited liability company is L.A. County, LLC.
2. The address of its registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Formation of L.A.
County, LLC this 15th day of June, 1998.
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/s/ L. Frank Cordero |
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L. Frank Cordero |
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Authorized Person |
CERTIFICATE OF AMENDMENT
OF
L.A. COUNTY, LLC
1. The name of the limited liability company is L.A. County, L.L.C.
2. The Certificate of Formation of the limited liability company is hereby amended as follows:
Article First of the Certificate of Formation is hereby amended to read as follows: The name
of the limited liability company is Consolidated Disposal Service, L.L.C.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment of L.A. County, L.L.C. this 31st day of July, 1998.
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/s/ David A. Barclay |
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David A. Barclay |
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Authorized Individual |
exv3w395
Exhibit 3.395
THIRD AMENDED AND RESTATED
OPERATING AGREEMENT
OF CONSOLIDATED DISPOSAL SERVICE, L.L.C.
This Third Amended and Restated Operating Agreement (the Agreement) of CONSOLIDATED
DISPOSAL SERVICE, L.L.C. (the Company) is executed as of December 5, 2008, by REPUBLIC SERVICES,
INC., a Delaware corporation, the sole member of the Company (the Member), and shall bind the
Member, the Company, and any other person who may acquire any interest in the Company. This
Agreement shall supersede and replace the Companys Second Amended and Restated Operating
Agreement, dated July 20, 2001, in its entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is CONSOLIDATED DISPOSAL SERVICE, L.L.C. All
business of the Company shall be conducted in the Company name. The Company shall hold its
property in the name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Delaware shall
be The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware, County of New Castle.
The registered office may be changed to any other place within the State of Delaware upon the
consent of the Member. The Company may maintain a registered office in any state within which it
does business at any location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.7 Certificate of Formation. The Companys Certificate of Formation was filed with
the Delaware Secretary of State on June 15, 1998, and was amended on August 4, 1998 (the
Certificate of Formation). The Member shall file any amendments to the Certificate of Formation
deemed necessary to reflect amendments to this Agreement that the Member adopts in accordance with
the terms. Upon the approval of any amendments, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit
A to this Agreement.
2.2 Contributions of Member. The Member has contributed to the Company the cash or
other assets set forth on Exhibit A to this Agreement. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the
sole discretion of the Member. Any party dealing with the Company shall be permitted to rely
absolutely on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise
specified by the Member, the following officers shall have the authority to engage in the
activities set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions
of the Member are carried into effect. The President shall execute all bonds, mortgages, contracts
and other instruments of the Company, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Company may sign and execute
documents when so authorized by this Agreement, the Member, or the President. The
2
President shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there
are any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a
bond in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case
of his death, resignation, retirement, or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Company.
3
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company;
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 18-802 of the Act.
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6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until a certificate of cancellation has been filed
with the Delaware Secretary of State or until a decree dissolving the Company has been entered by
a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all
of the remaining property and assets of the Company have been distributed to the Member, the
Member shall execute and file a certificate of cancellation with the Delaware Secretary of
State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
5
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann. Tit.
6, § 18-101, et seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Certificate of Formation has the meaning given that term in Section 1.7.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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REPUBLIC SERVICES, INC.,
a Delaware corporation, its
Sole Member |
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By:
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/s/ Donald W. Slager |
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Name:
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Donald W. Slager |
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Title:
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President & COO |
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6
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
Republic Services, Inc.
18500 North Allied
Way
Phoenix, AZ 85054 |
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$ |
1.00 |
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100 |
% |
7
exv3w396
Exhibit 3.396
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 01:00 PM 03/03/2003 |
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030138725 2379277 |
CERTIFICATE OF CONVERSION
OF
CONTINENTAL WASTE INDUSTRIES, INC.
(a Delaware corporation)
(Pursuant to Section 266 of the General Corporation Law of the State of Delaware)
It is hereby certified that:
1. The name of the corporation is Continental Waste Industries, Inc. (the
Corporation).
2. The date of filing of the original certificate of incorporation of the Corporation
with the Secretary of State of the State of Delaware is February 17, 1994.
3. The name of the limited liability company into which the corporation shall be
converted is Continental Waste Industries, L.L.C.
4. The conversion herein certified has been approved in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
Dated: March 1, 2003
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Continental Waste Industries, Inc. |
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By:
Name:
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/s/ David A. Barclay
David A. Barclay
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Title:
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Vice President and Secretary |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 01:00 PM 03/03/2003 |
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030138725-2379277 |
CERTIFICATE OF FORMATION
OF
CONTINENTAL WASTE INDUSTRIES, L.L.C.
(Pursuant
to the Limited Liability Company Act of the State of Delaware, Title 6.)
The undersigned, as an authorized person, in order to form a limited liability company
pursuant to the Limited Liability Company Act of the State of Delaware, does hereby
certify as follows:
1. The
name of the company is Continental Waste Industries, L.L.C. (the
Company).
2. The name and address of the registered agent of the Company in the State
of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19808.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation on the 1st day of March, 2003.
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/s/ Gary M. Blyn
Gary M. Blyn, Authorized Person
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State of Delaware
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Secretary
of State |
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Division
of Corporations |
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Delivered 04:49 PM 05/11/2005
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FILED 04:42 PM 05/11/2005 |
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[ILLEGIBLE] 050385383-2379277 FILE |
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CERTIFICATE OF AMENDMENT
OF
CONTINENTAL
WASTE INDUSTRIES, L.L.C.
1. The
name of the limited liability company is CONTINENTAL WASTE
INDUSTRIES, L.L.C.
2. The
Certificate of Formation of the limited liability company is hereby
amended as follows:
The
Registered Agent is as follows: The Corporation Trust Company
The Registered Agent address is as follows: Corporation Trust Center
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1209 Orange Street |
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Wilmington, DE 19801 |
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County of New Castle |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of Continental
Waste Industries, L.L.C. this
11th day of May, 2005.
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Signature:
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/s/ Harris W. Hudson
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Printed Name & Title: Harris W. Hudson, Manager |
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exv3w397
Exhibit 3.397
OPERATING AGREEMENT FOR
CONTINENTAL WASTE INDUSTRIES, LLC
THIS OPERATING AGREEMENT (the Agreement) of CONTINENTAL WASTE INDUSTRIES, LLC, (formerly
Continental Waste Industries, Inc.), a Delaware limited liability company (the Company), is made
and entered into on March 3, 2003, by Republic Services, Inc. (RSI). The Company was organized
as a limited liability company under the Delaware Limited Liability Company Act (the Law).
Certain defined terms used in this Agreement are set forth in Schedule I (Schedule of
Definitions) attached hereto and made a part hereof. In consideration of the mutual covenants
and agreements contained in this Agreement and other good and valuable consideration, and
intending to be legally bound hereby, the undersigned hereby agrees as follows:
I. PURPOSES
The purposes of the Company are to engage in and do any act in furtherance of any and all
lawful businesses for which limited liability companies may be formed under the Law.
II. ORGANIZATIONAL MATTERS
Section 2.1 Formation. The Company was formed pursuant to the Law upon the filing of
Certificate of Formation (Certificate) The rights and obligations of the Members shall be as
provided under the Law, except as otherwise provided in the Certificate and this Agreement. The
Members agree to each of the provisions of the Certificate. It is hereby agreed, acknowledged and
confirmed that Harris W. Hudson was and is the sole manager (within the meaning of the Law) for
purposes of executing and filing the Certificate, and the Certificate and such execution and
filing of same are hereby ratified, approved and authorized.
Section 2.2 Principal Place of Business. The principal place of business of the
Company shall be 110 S.E. 6th Street, 28th Floor, Ft. Lauderdale, Florida 33301, or such
other address as may be established by the Members.
Section 2.3 Duration. The existence of the Company shall continue in perpetuity,
unless the Company is sooner dissolved in accordance with the Law.
III. MEMBERS AND CAPITAL STRUCTURE
Section 3.1 Units Representing Membership Interests. The Interests of Members in the
Company are divided into and represented by Units. Each Members respective number of Units is set
forth in Exhibit A as the same shall be amended from time to time to reflect any changes
in the number of Units of Members. The Members agree that each Unit shall entitle the Member
possessing such Unit to:
(a) Equal governance rights per Unit and to one vote per Unit on matters on which the Members
may vote under the Certificate, this Agreement and/or the Law;
(b) An equal proportionate share per Unit of the Companys net income, gains, losses,
deductions and credits; and
(c) An equal proportionate share per Unit of amounts distributed to the Members in respect of
their Interests upon dissolution of the Company.
Unless otherwise approved by the Members, the Company will not issue certificates representing
Units, but at the written request of a Member, the Company will provide a certified statement
setting forth the total number of Units issued and outstanding and the number of Units issued to
the requesting Member, as of the date of the statement. It is hereby agreed, acknowledged and
confirmed that RSI is, and has been admitted as the sole member of the Company, and that RSIs
Units as set forth in Exhibit A have been duly issued, and such admission and issuance are
hereby ratified, approved and authorized.
Section 3.2 Capital Contributions. The initial Capital Contribution to the Company of
the sole Member is set forth on Exhibit A.
Section 3.3 Additional Capital. The Member shall not be obligated to make any Capital
Contributions other than its initial Capital Contribution.
Section 3.4 Capital Accounts.
(a) An individual capital account (the Capital Account) shall be established and maintained
on behalf of each Member, including any Additional Member who shall hereafter receive an Interest,
in the manner provided by Treasury Regulations Section 1.704-I(b)(2)(iv).
(b) Except as is specifically provided otherwise in this Agreement, no Member shall have any
liability or obligation to restore a negative or deficit balance in such Members Capital Account.
IV. MEETINGS OF MEMBERS
Section 4.1 Annual Meetings. Annual meetings of the Members shall be held no later
than ninety (90) days following the close of the Companys fiscal year at the principal offices of
the Company, or on such other date or at such other place as may be designated by a Majority in
Interest of the Members.
Section 4.2 Special Meetings. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Member upon notice in
writing to the Company of the proposed meeting and the matters proposed to be acted upon.
Section 4.3 Notice of Meetings. The Company shall deliver or mail written notice
stating the date, time and place of any Members meeting and, in the case of a special Members
meeting or when otherwise required by law, a description of the purposes for which the meeting is
called, to each Member of record entitled to vote at the meeting, at such address as appears in
the records of the Company and at least five (5), but no more than sixty (60), days before the
date of the meeting.
Section 4.4 Waiver of Notice. A Member may waive notice of any meeting, before or
after the date and time of the meeting as stated in the notice, by delivering a signed waiver to
the Company for inclusion in the minutes. A Members attendance at any meeting, in person or by
proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the Member
at the beginning of the meeting objects to holding the meeting or transacting business at the
meeting, and (b) waives objection to consideration of a particular matter at the meeting that is
not within the purposes described in the meeting notice, unless the Member objects to considering
the matter when it is presented.
Section 4.5 Voting Rights. Except as otherwise provided herein, on all matters that
come before the Members for a vote, each Member shall be entitled to one vote for each Unit owned
by such Member. The presence of a Majority in Interest of the Members shall constitute a quorum for
any meeting of the Members. Except as otherwise provided in this Agreement, approval of any action
by Majority in Interest of the Members requires the approval of a Majority in Interest of the
Members.
Section 4.6 Action by Consent. Any action required or permitted to be taken at a
Members meeting may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the Members. The written consent or consents shall be
delivered to the Company for inclusion in its minutes.
Section 4.7 Presence. Any or all Members may participate in any annual or special
Members meeting by, or through the use of, any means of communication by which all Members
participating may simultaneously hear each other during the meeting. A Member so participating is
deemed to be present in person at the meeting.
Section 4.8 Conduct of Meetings. At any Members meeting, the Members with the
approval of a Majority in Interest of the Members shall appoint a Member to preside at the meeting
and shall appoint a person to act as secretary of the meeting. The secretary of the meeting shall
prepare minutes of the meeting which shall be placed in the minute book of the Company.
V. MANAGEMENT AND OFFICERS
Section 5.1 Governance. The Company shall be managed by its members.
Section 5.2 Officers. The Company shall have a President, Vice President, Secretary,
Treasurer and such other officers as the Member may determine and appoint. Such officers of the
Company shall have the authority to sign contracts and execute documents that obligate the
Company. The sole Member shall be an officer of the Company, holding each of the offices and
titles set forth above, except to the extent that the sole Member has appointed another person or
Entity to such office.
VI. ACCOUNTING AND RECORDS
Section 6.1 Records and Accounting. The books and records of the Company shall be
kept, and the financial position and the results of its operations recorded, in accordance with
generally accepted accounting principles consistently applied (GAAP). The books and records of
the Company shall reflect all Company transactions and shall be appropriate and adequate for the
Companys business. The fiscal year of the Company for financial reporting and for federal income
tax purposes shall be the calendar year.
Section 6.2 Access to Accounting Records. All books and records of the Company shall
be maintained at any office of the Company or at the Companys principal place of business, and
each Member, and his, her, or its duly authorized representative, may inspect and copy such books
and records upon reasonable notice and request, during normal business hours.
Section 6.3 Annual Tax Information. The Company shall use its best efforts to deliver
to each Member within 60 days after the end of each fiscal year all information necessary for the
preparation of such Members federal and state income tax returns. The Company shall also use its
best efforts to prepare, within 60 days after the end of each fiscal year, a financial report of
the Company for such fiscal year containing a balance sheet as of the last day of the year then
ended, an income statement for the year then ended, a statement of sources and applications of
funds, and a statement of reconciliation of the Capital Accounts of the Members.
VII. ALLOCATIONS AND DISTRIBUTIONS
Section 7.1 Allocation of Net Income, Net Loss or Capital Gains. The net income, net
loss, or capital gains of the Company for each fiscal year of the Company shall be allocated to
the Members, pro rata in accordance with their respective Percentage Interests.
VIII. DISSOLUTION AND WINDING UP
Section 8.1 Dissolution. The Company shall be dissolved and its affairs wound up on
the first of the following to occur:
(a) A unanimous determination by the Members that the Company shall be dissolved; or
(b) At such earlier time as may be provided by applicable law.
Section 8.2 Winding Up. Upon dissolution, the Members shall proceed to wind up and
liquidate the business and affairs of the Company, and the Company may only carry on business that
is appropriate to wind up and liquidate the business and affairs of the Company, including the
following: (a) collecting the Companys assets, (b) disposing of properties that will not be
distributed in kind to Members, (c) discharging or making provision for discharging liabilities,
(d) distributing the remaining property among the Members, and (e) doing every other Law necessary
to wind up and liquidate the business and affairs of the Company. The Members shall follow the
procedure for disposing of known claims set forth in the Law and shall publish notice of the
dissolution of the Company pursuant to the Law.
Section 8.3 Distribution of Assets. Upon the winding up of the Company, the assets
shall be distributed as follows:
(a) To creditors, including Members who are creditors to the extent permitted by law, in the order
of priority as provided by law to satisfy the liabilities of the Company whether by payment or by
the establishment of adequate reserves;
(b) To Members to repay any loans to the Company;
(c) To Members of the Company in respect of their share of the profits and other compensation by
way of income on their Capital Contributions to the extent each such Member has a positive balance
in his Capital Account as provided in Treasury Regulation
§1.704-1(b)(2)(ii)(b)(2); and
(d) To Members of the Company in respect of their Capital Contributions to the extent each such
Member has a positive balance in his Capital Account as provided in Treasury Regulation §1.704-1(b)(2)(ii)(b)(2).
IX. AMENDMENTS
Section 9.1 Proposal of Amendments. Amendments to the Certificate and this Agreement
may be proposed in writing by any Member. Copies of any amendments proposed to be made shall be
sent to the Members.
Section 9.2 Approval of Amendments. A proposed amendment shall be voted upon at either
an annual meeting or a special meeting of the Members duly called for the purpose of voting on the
amendment. Such amendment shall be approved by a Majority in Interest of the Members.
X. MISCELLANEOUS
Section 10.1 Complete Agreement. This Agreement and the Certificate constitute the
complete and exclusive statement of agreement among the Members with respect to its subject
matter. This Agreement and the Certificate replace and supersede all prior agreements by and among
the Members or any of them. This Agreement and the Certificate supersede all prior written and
oral statements, and no representation, statement, or condition or warranty not contained in this
Agreement or the Certificate will be binding on the Members or have any force or effect
whatsoever.
Section 10.2 Governing Law. This Agreement and the rights of the parties under this
Agreement will be governed by, interpreted, and enforced in accordance with the laws of the State
of Delaware.
Section 10.3 Binding Effect; Conflicts. Subject to the provisions of this Agreement
relating to transferability, this Agreement will be binding upon and inure to the benefit of the
Members and their respective distributees, successors and assigns.
Section 10.4 Headings: Interpretation. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. The singular shall include the plural, and the
masculine gender shall include the feminine and neuter, and vice versa, as the context requires.
Section 10.5 Severability. If any provision of this Agreement is held to be illegal,
invalid, unreasonable, or unenforceable under the present or future laws effective during the term
of this Agreement, such provision will be fully severable; this Agreement will be construed and
enforced as if such illegal, invalid, unreasonable, or unenforceable provision had never comprised
a part of this Agreement; and the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid, unreasonable, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid,
unreasonable, or unenforceable provision, there will be added automatically as a
part of this Agreement a provision as similar in terms to such illegal, invalid, unreasonable, or
unenforceable provision as may be possible and be legal, valid, reasonable, and enforceable.
Section 10.6 Multiple Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which will constitute one and
the same instrument. However, in making proof with respect to this Agreement, it will be necessary
to produce only one copy hereof signed by the party to be charged.
Section 10.7 Additional Documents and Laws. Each Member agrees to promptly execute
and deliver to the Company such additional documents, statements of interest and holdings,
designations, powers of attorney, and other instruments, and to perform such additional Laws, as
the Company may determine to be necessary, useful or appropriate to complete the organization of
the Company, effectuate, carry out and perform all of the terms, provisions, and conditions of
this Agreement and the transactions contemplated by this Agreement, and to comply with all
applicable laws, rules and regulations.
Section 10.8 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the Members and their respective successors and assigns
subject to the express provisions of this Agreement relating to successors and assigns. This
Agreement is expressly not intended for the benefit of any creditor of the Company or any other
third party. No creditor or other third party will have any rights, interest, or claims under the
Agreement or be entitled to any benefits under or on account of this Agreement as a third party
beneficiary or otherwise.
Section 10.9 Notices. Any notice to be given or to be served upon the Company or any
Member in connection with this Agreement must be in writing and will be deemed to have been given
and received when delivered to the address specified by the party to receive the notice. Such
notices will be given to a Member at the address that appears in the records of the Company. Any
Member or the Company may, at any time by giving five days, prior written notice to the other
Members and the Company, designate any other address in substitution of the foregoing address to
which such notice will be given.
Section 10.10 Title to Company Property. Legal title to all property of the Company
will be held and conveyed in the name of the Company.
Section 10.11 Reliance on Authority of Person Signing Agreement. In the event that a
Member is not a natural person, neither the Company nor any Member will (a) be required to
determine the authority of the individual signing this Agreement to make any commitment or
undertaking on behalf of such Person or to determine any fact or circumstance bearing upon the
existence of the authority of such individual, or (b) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this Agreement on behalf of such
Entity.
Section 10.12 No Remedies Exclusive. To the extent any remedies are provided herein
for a breach of this Agreement, the Certificate or the Law, such remedies shall not be exclusive
of any other remedies the aggrieved party may have, at law or in equity.
Section 10.13 Other Ventures. Each of the Members may engage, directly or indirectly,
in any other business venture or ventures of any nature and description, independently or with
others, and neither the Company nor any of the Members shall have any rights in and to any such
business ventures or the income or profits derived therefrom. The provisions of this section shall
apply to a Member both during the period of its membership in the Company and after withdrawal from
membership in the Company.
IN WITNESS WHEREOF, the undersigned sole Member of the Company has executed and agreed to
this Operating Agreement on March 3, 2003.
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REPUBLIC SERVICES, INC.
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By: |
/s/ David A. Barclay
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David A. Barclay |
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Title: |
Sr. Vice President & Asst. Secretary |
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SCHEDULE I
TO THE OPERATING AGREEMENT
(SCHEDULE OF DEFINITIONS)
The terms used in this Agreement with their initial letters capitalized shall have, unless
the context otherwise requires or unless otherwise expressly provided in this Agreement, the
meanings specified in this Schedule I. Any term used but not defined in this Agreement shall have
the meanings set forth in the Law. The singular shall include the plural, and the masculine gender
shall include the feminine and neuter, and vice versa, as the context requires. When used in this
Agreement, the following terms shall have the meanings set forth below:
Law means the Delaware Limited Liability Company Act, as the same is amended from time to
time.
Agreement means this Operating Agreement of the Company, as originally executed,
including all Schedules and Exhibits, and all of which may be amended from time to time.
Assignee means any assignee as that term is used in the Law, and includes any
transferee or recipient of a Transfer of any Unit or Units, or any portion thereof.
Code means the Internal Revenue Code of 1986, as amended. All references in this
Agreement to sections of the Code shall include any corresponding provision or provisions of any
succeeding law.
Entity means any association, corporation, general partnership, limited
partnership, limited liability partnership, limited liability company, joint stock association,
joint venture, firm, trust, business trust, cooperative, or foreign associations of like
structure.
Interest means the entire ownership interest of a Member in the Company at any
particular time, including the right of such Member to any and all benefits to which a Member may
be entitled as provided in this Agreement and under the Law, together with the obligations of such
Member to comply with all of the terms and provisions of this Agreement.
Majority in Interest of the
Members means the Member(s) who hold a majority of the
outstanding Units. Majority in Interest of the remaining Members means those Members holding a
majority of the outstanding Units, excluding the Member in question and that Members Units. In
this regard, Unit(s) or any portion thereof that are the subject of an effective Transfer to an
Assignee not a Substitute Member shall not be considered outstanding Units.
Member or Members refers to the parties to this Agreement as indicated on
Exhibit A, and any Additional Members or Substitute Members.
Operating Agreement means this Agreement.
Percentage Interest means the percentage obtained by dividing the number of Units of
a Member by the total number of outstanding Units of all Members.
Principal Office means the principal place of business specified in Section 2.2.
Substitute Member means any individual or entity admitted as a Member pursuant to
Section 8.4.
Transfer means any assignment as that term is used in the Law, and includes any
gift, sale, exchange, assignment, conveyance, alienation or other transfer, whether voluntary or
involuntary, and includes any Transfer to a receiver, bankruptcy trustee judgment creditor,
lienholder, holder of a security interest, pledge or other encumbrance, and Transfer upon judicial
order or other legal process (such as a Transfer in connection with divorce proceedings).
Unit refers to a unit of measurement of a Members Interest as established in
Section 3.1. Whenever reference is made to Percentage Interest, a Unit may be converted into the
same by dividing a Members number of Units by the total of all Units outstanding. For voting and
other governance purposes, Unit(s) or any portion thereof that are the subject of an effective
Transfer to an Assignee not a Substitute Member shall not be considered outstanding Units.
EXHIBIT A
TO THE OPERATING AGREEMENT
NAMES OF MEMBERS; CAPITAL
CONTRIBUTIONS, AND UNITS OF MEMBERS
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Initial |
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Capital |
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Number |
Member |
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Contribution |
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of Units |
Republic Services, Inc., a Delaware
corporation |
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$ |
1.00 |
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1 |
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exv3w398
Exhibit 3.398
CERTIFICATE OF INCORPORATION
OF
COPPER MOUNTAIN LANDFILL, INC.
1. The name of the Corporation is Copper Mountain Landfill, Inc. (the
Corporation).
2. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at that address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares, one cent
($0.01) par value.
5. The name and mailing address of the incorporator are as follows:
D. W. Slager
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as
follows:
D. W. Slager
James Eng
G. Thomas Rochford, Jr.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the Corporation
shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director
of the benefits hereof with respect to any act or omission occurring prior to such amendment or
repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its creditors
or any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provision of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation, as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 5th day of October, 1999.
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/s/ D. W. Slager
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D. W. Slager, Incorporator |
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2
exv3w399
Exhibit 3.399
BYLAWS
OF
COPPER MOUNTAIN LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
1
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract
or transaction are disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be
given notice of all meetings of the stockholders and special meetings of the Board of Directors,
and if there is no Assistant Secretary, then either the Board of Directors or the President may
choose another officer to cause such notice to be given. The Secretary shall have custody of the
seal of the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of
the duties of his office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any
regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the
Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected
with reasonable care by the Corporation or another enterprise. The term another enterprise as
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the
applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
exv3w400
Exhibit 3.400
FILED
IN THE OFFICE OF THE CORPORATION
COMMISSIONER OF THE STATE OF OREGON
MAR 1-1954
MAURICE HUDSON
CORPORATION COMMISSIONER
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No. 11 Corporations for Gain
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Submit in Triplicate |
Three or more persons of the age of 21 years or more may incorporate. Articles
shall be executed in triplicate, and all of the copies forwarded to the Corporation
Commissioner, Salem, Oregon. See Notes 1, 2 and 3 on back of this form. |
Articles of Incorporation
OF
CORVALLIS DISPOSAL CO.
We, the undersigned natural persons of the age of twenty-one years or more, acting as
incorporators under the Oregon Business Corporation Act, adopt the following Articles of
Incorporation:
ARTICLE I
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The name of this corporation is Corvallis Disposal Co. and its duration shall be perpetual. |
ARTICLE II
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The purpose or purposes for which the corporation
is organized are: |
a) To conduct a general disposal business.
b) In general, to carry on any other lawful business whatsoever in
connection with the foregoing or which is calculated, directly or indirectly, to
promote the interest of the corporation or to enhance the value of its
properties.
c) This corporation assumes to itself and shall possess all rights,
privileges and powers granted to or conferred on similar corporations by the
laws of the State of Oregon and all additions and amendments thereto.
ARTICLE III
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The aggregate number of shares which the corporation shall have authority to issue is
one thousand shares of the par value of $100,000 per share. |
ARTICLE IV
The corporation will not commence business until not less than $1,000 (At least $1,000) has been
received by it as consideration
for the issuance of its shares. (If the corporation shall have par value shares only, the
total par value of which is less than $1,000, then the amount to be received by it shall be the
total par value thereof.)
ARTICLE V
The address of the initial registered office of the corporation is 121 North Third
Street, Corvallis, Oregon and the name of its initial registered agent at such address is Robert E. Bunn
ARTICLE VI
The number of directors constituting the initial board of directors of the corporation is
three (At least three). The directors shall be elected by the subscribing shareholders at a meeting called for
that purpose by a majority of the incorporators.
ARTICLE VII
The name and address of each incorporator is:
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Address |
Name |
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(Street and Number, if any) |
Robert E. Bunn
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828 North 29th, Corvallis, Oregon |
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Daniel E. Bunn
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Wishram, Washington |
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Kathryn R. Bunn
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828 North 29th, Corvallis, Oregon |
ARTICLE VIII
(Add provisions for the regulation of the internal affairs of the corporation as may be appropriate.)
none
Dated February 2nd, 1954.
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/s/ Daniel E. Bunn
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/s/ Robert E. Bunn
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/s/ Kathryn R. Bunn
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STATE OF OREGON,
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}
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County of Benton,
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}ss. |
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I, Robert Mix, a notary public for Oregon, hereby certify that on the
2nd day of February, 1954, personally appeared before me Robert E. Bunn, Daniel E. Bunn and Kathryn R. Bunn, who being by me first duly sworn, severally declared that they are the persons who signed the
foregoing document as incorporators, and that the statements therein contained are true.
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/s/ Robert Mix
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Notary Public for Oregon |
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My commission expires: May 7, 1954 |
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FILED
AUG 23, 1999
SECRETARY OF STATE
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION OF
CORVALLIS DISPOSAL CO.
1. The name of the corporation is Corvallis Disposal Co.
2. The amendments adopted to the articles of incorporation are as follows, to add the
following articles to the articles of incorporation:
ARTICLE VII. ELIMINATION OF LIABILITY
A. To the fullest extent permitted by law, no director of the corporation
shall be personally liable to the corporation or its shareholders for monetary
damages for conduct as a director, except that this provision shall not eliminate
or limit the liability of a director for any of the following:
1. Any act or omission occurring before the date this provision
becomes effective;
2. Any breach of the directors duty of loyalty to the corporation
or its shareholders;
3. Acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
4. Any distribution to shareholders that is unlawful under the Oregon
Business Corporation Act or successor statute; or
5. Any transaction from which the director derived an improper
personal benefit.
B. Without limiting the generality of the foregoing, if the provisions of
applicable law are further amended at any time, and from time to lime, to authorize
corporate action further eliminating the personal liability of directors and officers
of the corporation, the liability of directors and officers of the corporation shall
be eliminated or limited to the fullest extent permitted by applicable law, as so
amended.
C. No amendment to or repeal of this Article VII, or adoption of any provision
of these Articles of Incorporation inconsistent with this Article VII, or a change in
the law, shall adversely affect any elimination or limitation of liability, or other
right or protection, that is based upon this Article VII and
pertains to any act, conduct, omission, or circumstance that occurred or
existed before the amendment, repeal, adoption, or change. No change in the law
shall reduce or eliminate the rights and protections set forth in this Article
VII unless the change in law specifically requires the reduction or
elimination. No amendment to or repeal of this Article VII shall apply to or
have any effect on the liability or alleged liability of any director or
officer of the corporation for or with respect to any acts or omissions before
the amendment or repeal.
ARTICLE VIII. INDEMNIFICATION
A. The corporation shall indemnify, to the fullest extent permitted by
law, any person who is made or threatened to be made a party to, witness in,
or otherwise involved in, any action, suit, or proceeding, whether civil,
criminal, administrative, investigative, or otherwise (including any action,
suit, or proceeding by or in the right of the corporation) by reason of the
fact that the person is or was a director or officer of the corporation or any
of its subsidiaries, or a fiduciary within the meaning of the Employee
Retirement Income Security Act of 1974 with respect to any employee benefit
plan of the corporation or any of its subsidiaries, or served or serves at the
request of the corporation as a director or officer, or as a fiduciary of an
employee benefit plan, of another corporation, partnership, joint venture,
trust, or other enterprise. Any indemnification provided pursuant to this
Article VIII shall not be exclusive of any rights to which the person
indemnified may otherwise be entitled under any provision of these Articles of
Incorporation, the Bylaws, agreement, statute, policy of insurance, or
otherwise.
B. Indemnification provided under this Article VIII shall continue to
cover any director or officer after the person ceases to serve in that
capacity and shall enure to the benefit of the persons heirs, personal
representatives, and administrators.
C. The right to indemnification conferred by this Article VIII shall be
considered a contract right between the corporation and the person entitled
to indemnity under this Article VIII.
D. In addition to any rights set forth above in this Article VIII, the
corporation shall advance all reasonable expenses incurred by a director or
officer who on behalf of the corporation is party to a proceeding, in advance
of the proceeding to the fullest extent required or authorized under the
law.
3. The date each amendment was adopted is 8/18 , 1999.
Page 2 ARTICLES OF AMENDMENT
4, The amendments were approved by the shareholders. Two hundred
seventy-eight shares of the corporation are outstanding, 278 votes are entitled to be
cast on the amendments, 278 votes were cast for the amendments, and no votes were
cast against the amendments.
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Corvallis Disposal Co.
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By |
/s/ Gary A. Barton
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Gary A. Barton, Vice President |
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Page 3 ARTICLES OF AMENDMENT
exv3w401
Exhibit 3.401
AMENDED AND RESTATED BYLAWS
OF
CORVALLIS DISPOSAL CO.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the
2
meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any
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meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
5
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties
6
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or
7
in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors
8
for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
9
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or
10
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
12
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
13
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance
14
on behalf of any person who is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
15
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w402
Exhibit 3.402
CERTIFICATE OF INCORPORATION
OF
COUNTY DISPOSAL (OHIO), INC.
The undersigned incorporator, in order to form a corporation under the
General Corporation Law of Delaware, certifies as follows:
FIRST: The name of the corporation is County Disposal (Ohio), Inc.
SECOND: The registered office of the corporation is to be located at 32 Loockerman Square,
Suite L-100, Dover, Kent County, Delaware 19901. The name of its registered agent at that address
is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The corporation shall have the authority to issue 1000 shares of common stock, par
value $0.01 per share.
FIFTH: The name and mailing address of the incorporator are as follows:
Stephen W. Rubin, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between the corporation and its
creditors or any class of them and/or between the corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in a
summary way of the corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the corporation under the provisions of §291 of Title 8 of
the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers
appointed for the corporation under the provisions of §279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders
of the corporation, as the case may be, to be summoned in such manner as the said court directs.
If a majority in number representing three fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of the corporation as
a consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the corporation, as the case may be, and also on the corporation.
EIGHTH: A director of this corporation shall not be personally liable to the corporation or
its stockholders for monetary damages for the breach of any fiduciary duty as a director, except in
the case of (a) any breach of the directors duty of loyalty to the corporation or its
stockholders, (b) acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (c) under section 174 of the General Corporation Law of the State of
Delaware or (d) for any transaction from which the director derives an improper personal benefit.
Any repeal or modification of this Article by the stockholders of the corporation shall not
adversely affect any right or protection of a director of the corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to such repeal or
modification.
NINTH: The corporation shall, to the fullest extent permitted by law, as the same is now or
may hereafter be in effect, indemnify each person (including the heirs, executors, administrators
and other personal representatives of such person) against expenses including attorneys fees,
judgments, fines and amounts paid in settlement, actually and reasonably incurred by such person in
connection with any threatened, pending or completed suit, action or proceeding (whether civil,
criminal, administrative or investigative in nature or otherwise) in which such person may be
involved by reason of the fact that he or she is or was a director or officer of the corporation or
is or was serving any other incorporated or unincorporated enterprise in such capacity at the
request of the corporation.
TENTH: Unless, and except to the extent that, the by-laws of the corporation shall so
require, the election of directors of the corporation need not be by written ballot.
ELEVENTH: The corporation hereby confers the power to adopt, amend or repeal bylaws of the
corporation upon the directors.
IN WITNESS WHEREOF, I have hereunto set my hand this
9th day of May, 1995.
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/s/ Stephen W. Rubin |
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Stephen W. Rubin, Esq.
Sole Incorporator |
exv3w403
Exhibit 3.403
AMENDED AND RESTATED BYLAWS
OF
COUNTY DISPOSAL (OHIO), INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
outside of the State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the
votes entitled to be cast by the holders of all the then issued and outstanding shares of common
stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to
this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Written notice
may also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal,
Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock
holders or disinterested directors or pursuant to the direction (howsoever embodied) of any court
of competent jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w404
Exhibit 3.404
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 04/27/1995 |
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950093141 2502226 |
CERTIFICATE OF INCORPORATION
OF
COUNTY DISPOSAL, INC.
The undersigned incorporator in order to form a corporation under the
General Corporation Law of Delaware, certifies as follows:
FIRST: The name of the corporation is County Disposal, Inc.
SECOND: The registered office of the corporation is to be located at 32 Loockerman
Square, Suite L-100, Dover, Kent County, Delaware 19901. The name of its registered agent at
that address is The Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The corporation shall have the authority to issue 1000 shares of common stock,
par value $0.01 per share.
FIFTH: The name and mailing address of the incorporator are as follows:
Stephen W. Rubin, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between the corporation and
its creditors or any class of them and/or between the corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the state of Delaware may, on the
application in a summary way of the corporation or of any creditor or stockholder thereof or
on the application of any receiver or receivers appointed for the corporation under the
provisions of $291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the corporation under the
provisions of $279 of Title 8 of the Delaware Code order a meeting of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of the corporation, as the
case may be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of the corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of the
corporation as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of the corporation, as the case may be, and also on
the corporation.
EIGHTH: A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for the breach of any fiduciary duty as a
director, except in the case of (a) any breach of the directors duty of loyalty to the
corporation or its stockholders, (b) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (c) under section 174 of the General
Corporation Law of the State of Delaware or (d) for any transaction from which the director
derives an improper personal benefit. Any repeal or modification of this Article by the
stockholders of the corporation shall not adversely affect any right or protection of a director
of the corporation existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
NINTH: The corporation shall, to the fullest extent permitted by law, as the same is now
or may hereafter be in effect, indemnify each person (including the heirs, executors,
administrators and other personal representatives of such person) against expenses including
attorneys fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred
by such person in connection with any threatened, pending or completed suit, action or proceeding
(whether civil, criminal, administrative or investigative in nature or otherwise) in which such
person may be involved by reason of the fact that he or she is or was a director or officer of
the corporation or is or was serving any other incorporated or unincorporated enterprise in such
capacity at the request of the corporation.
TENTH: Unless, and except to the extent that, the by-laws of the corporation shall so
require, the election of directors of the corporation need not be by written ballot.
ELEVENTH: The corporation hereby confers the power to adopt, amend or repeal bylaws of the
corporation upon the directors.
IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of April, 1995.
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/s/ Stephen W. Rubin
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Stephen W. Rubin, Esq. |
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Sole Incorporator |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 08/01/1995 |
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950172593 2502226 |
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COUNTY DISPOSAL, INC.
It is hereby certified that:
1. The name of the corporation is COUNTY DISPOSAL, INC.
2. Article FOURTH of the Certificate of Incorporation of the Corporation is hereby amended to
be as follows:
FOURTH: The corporation shall have the authority to issue 130,000
shares of common stock, par value $.01 per share. The number of presently
outstanding shares of common stock, par value $.01 per share, of the
corporation (an aggregate 28.14875 shares) shall be reclassified and changed
on the basis of one thousand (1,000) shares for every one (l) share presently
outstanding with a result that the number of presently outstanding shares of
common stock, $.01 par value, shall be an aggregate 28,148.75.
3. The amendment to the Certificate of Incorporation herein certified has been duly adopted in
accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
Signed and attested to on July 26, 1995
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/s/ Scott H. Flamm
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Executive Vice President |
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Scott H. Flamm |
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Attest:
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/s/ Stephen W. Rubin |
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Stephen W. Rubin |
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exv3w405
Exhibit 3.405
AMENDED AND RESTATED BYLAWS
OF
COUNTY DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business transacted at all Special Meetings shall be confined to the objects stated in the
call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the
stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President
and the Board of Directors, at its regular meetings, or, from time to time, when the Board of
Directors so requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his possession or under his
control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words Corporate Seal, Delaware. The
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w406
Exhibit 3.406
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Prescribed by J. Kenneth Blackwell |
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Expedite this Form: (Select One) |
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Ohio Secretary of State |
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Mail Form to one of the Following: |
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Central Ohio: (614) 466-3910 |
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PO Box 1390 |
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Toll Free: 1-877-SOS-FILE (1-877-767-3453) |
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¡ Yes |
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Columbus, OH 43216 |
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*** Requires an additional fee of $100 *** |
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PO Box 670 |
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www.state.oh.us/sos |
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¡ No |
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e-mail: busserv@sos.state.oh.us |
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Columbus, OH 43216 |
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ORGANIZATION / REGISTRATION OF
LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
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(1) |
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Articles of Organization for |
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(2) |
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Application for Registration of |
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Domestic Limited Liability Company |
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Foreign Limited Liability Company |
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(115-LCA) |
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(106-LFA) |
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ORC 1705 |
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ORC 1705 |
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(Date of Formation) |
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(State) |
Complete the general information in this section for the box checked above.
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Name |
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County Environmental Landfill, LLC |
o Check here if additional provisions are attached
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* If box (1) is checked, name must include one of the following endings: limited liability company,
limited, Ltd, L.t.d., LLC, L.L.C. |
Complete
the information in this section if box (1) is checked.
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Effective Date (Optional) |
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Date specified
can be no more than 90 days after date of filing. If a date is
specified, the date must be a date on or after the date of filing. |
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(mm/dd/yyyy) |
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This limited liability company shall exist for |
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(Optional) |
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(Period of existence) |
The address to which interested persons may direct requests for copies of any operating
agreement and any bylaws of this limited liability company is
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(Optional) |
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(Name) |
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(Street) |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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(City) |
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(State) |
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(Zip Code) |
Page 1 of 5
Complete the information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned authorized member, manager or representative of
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County Environmental Landfill, LLC |
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(name of limited liability company) |
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hereby appoint the following to be statutory agent upon whom any process, notice or demand
required or permitted by statute to be served upon the limited liability company may be served. The
name and address of the agent is:
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C T Corporation System |
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(Name of Agent) |
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1300 East 9th Street |
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(Street) |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland |
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Ohio |
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44114 |
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Must be authenticated by an
authorized representative |
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/s/ Jo Lynn White |
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December 15, 2004 |
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Authorized Representative |
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Date |
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Jo Lynn White |
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Authorized Representative |
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ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for
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(name of limited liability company) |
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hereby acknowledges and accepts the appointment of agent for said limited liability Company.
C T Corporation System
PLEASE SIGN PAGE (3) AND SUBMIT COMPLETED DOCUMENT
Page 2 of 5
Complete the information in this section if box (2) is checked.
The address to which interested persons may direct requests for copies of any operating agreement
and any bylaws of this limited liability company is
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Jo Lynn White |
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(Name) |
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15880 N Greenway-Hayden Loop, Suite 100 |
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(Street) |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Scottsdale |
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Arizona |
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85260 |
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(Zip Code) |
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The name under which the foreign limited liability company desires to transact business in Ohio is
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County Environmental Landfill, LLC |
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The limited liability company hereby appoints the following as its agent upon whom process against
the limited liability company may be served in the state of Ohio. The name and complete address of
the agent is
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C T Corporation System |
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(Name) |
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1300 East 9th Street |
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(Street) |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland |
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Ohio |
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44114 |
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(City) |
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(State) |
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(Zip Code) |
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The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the OHIO
SECRETARY OF STATE if:
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the agent cannot be found, or |
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the limited liability company fails to
designate another agent when required to do so, or |
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the limited liability companys registration
to do business in Ohio expires or is cancelled. |
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REQUIRED
Must be authenticated (signed)
by an authorized representative
(See Instructions) |
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/s/ Jo Lynn White
Authorized Representative |
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December 15, 2004
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Page 3 of 5
exv3w407
Exhibit 3.407
OPERATING AGREEMENT OF
COUNTY ENVIRONMENTAL LANDFILL, LLC
This Operating Agreement is executed as of December 16, 2004, by County Disposal (Ohio), Inc., a
Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings set
forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company pursuant to the
provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is County Environmental Landfill, LLC. The name of the Company
may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the business of solid
waste management and disposal, and to engage in any other business or activity permitted under Ohio
law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate entity for
state law purposes, but be disregarded as an entity and operated in a manner consistent with its
treatment as a division of the Member for federal and state income tax purposes. It also is the
intent of the Member that the Company not be operated or treated as a partnership for purposes of
Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Ohio shall be CT Corporation
System, 1300 East 9th Street, Cleveland, Ohio 44114, County of Cuyahoga. The registered
office may be changed to any other place within the State of Ohio upon the consent of the Member.
The Company may maintain a registered office in any state within which it does business at any
location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Company in Ohio are CT Corporation System, 1300 East 9th
Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be changed
upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of Formation is
filed in Ohio, and shall continue in perpetuity until the Company is dissolved as set forth in this
Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be filed in the
State of Ohio. The Member shall file any amendments to the Certificate of Formation deemed
necessary by it to reflect amendments to this Agreement adopted by the Member in accordance with
the terms hereof. Upon the approval of the Certificate of Formation, or any amendments thereto, by
the Member in accordance with this Agreement, the Member or a designee of a Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or other assets
set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make additional Capital
Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities, contracts or
any other obligations of the Company. Except as agreed upon by the Member, and except as otherwise
provided by the Act or by any other applicable state law, the Member shall be liable only to make
the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be required to
make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed to
benefit any creditor of the Company, and no creditor of the Company will be entitled to require the
Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which shall bear
interest and be repaid on such reasonable terms and conditions as may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed to
the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and its affairs
shall be made or taken by the Member. Any party dealing with the Company shall be permitted to rely
absolutely on the signature of the Member as binding on the Company, without any duty of further
inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons as officers
of the Company. The officers shall have the authority to act for and bind the Company to the extent
of the authority granted to them in resolutions adopted by the Member on behalf of the Company. The
officers of the Company may include a president, vice presidents, a secretary, a treasurer, and
such other officers as the Member deems appropriate. The officers of the Company will be entitled
to such compensation for their services as the Member may determine from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify and save
harmless the Member, its officers and directors, and the officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all accounts, books
and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise disposed of
without the consent of the Member. Any attempted transfer, assignment, encumbrance, hypothecation
or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following events:
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(a) The sale of all or substantially all of the Companys assets and the collection of the proceeds
of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 1705.47 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 1705.44 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Ohio Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the Member, or
court-appointed trustee, if there is no remaining Member, shall take full account of the Companys
liabilities and assets, and such assets shall be liquidated as promptly as is consistent with
obtaining the fair value thereof. During the period of liquidation, the business and affairs of the
Company shall continue to be governed by the provisions of this Agreement, with the management of
the Company continuing as provided in Section 5 hereof.
The proceeds from liquidation of the Companys property, to the extent sufficient therefor, shall
be applied and distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including those to
the Member as a creditor, to the extent permitted by law, and the establishment of any necessary
reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant to
Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the Company have
been paid and discharged or adequate provisions have been made therefor and all of the remaining
property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Ohio Secretary of State.
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SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of the Member and its
heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If any term or
provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to perform all
further acts and execute, acknowledge and deliver any documents which may be reasonably necessary
or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to
masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
8.6 Ohio Law. The laws of the State of Ohio shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the meanings specified
in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Revised Code Chapter 1705,
as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as herein,
hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole, unless the
context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the net fair
market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding
provisions of succeeding law).
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Company means the limited liability company formed pursuant to this Agreement and any limited
liability company continuing the business of this Company in the event of dissolution as herein
provided.
Member means any Person identified as a Member in the heading to this Agreement. If any Person is
admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall also be
deemed to refer to such Person. Member refers collectively to all Persons who are designated as a
Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less the portion
thereof used to pay or establish reserves for Company expenses, debt payments (including payments
on Member Loans), capital improvements, replacements and contingencies, all as determined by the
Member.
Person means any individual, partnership, corporation, limited liability company, trust or other
entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the Companys
taxable income or loss for such year or period, determined in accordance with Code Section 703(a),
reduced by any items of income or gain subject to special allocation pursuant to this Agreement,
and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such regulations may
be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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COUNTY DISPOSAL (OHIO), INC.,
a Delaware corporation
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By: |
/s/ Jo Lynn White
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Its: |
Secretary |
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EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
County Disposal (Ohio), Inc.
15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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100.00 |
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exv3w408
Exhibit 3.408
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www.state.oh.us/sos e-mail: busserv@sos.state.oh.us |
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Prescribed by J. Kenneth Blackwell Ohio Secretary of State Central Ohio: (614) 466-3910 Toll Free: 1-877-SOS-FILE (1-877-767-3453) |
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Expedite this Form: (Select One)
Mail Form to one of the Following: PO Box 1390
¡ Yes Columbus, OH 43216
*** Requires an additional fee of $100 ***
PO Box 670
¡ No
Columbus, OH 43216 |
ORGANIZATION / REGISTRATION OF
LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
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(1)
þ Articles of Organization for Domestic Limited Liability Company |
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(2) o Application for Registration of
Foreign Limited Liability Company |
(115-LCA) |
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(106-LFA) |
ORC 1705 |
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ORC 1705 |
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(Date of Formation) |
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(State) |
Complete the general information in this section for the box checked above.
Name County Land Development Sanitary Landfill, LLC
o Check here if additional provisions are attached
* If box (1) is checked, name must include one of the following endings: limited liability company, limited, Ltd, L.t.d., LLC, L.L.C.
Complete the information in this section if box (1) is checked.
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Effective Date (Optional)
(mm/dd/yyyy) |
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Date specified can be no more than 90 days after date of filing. If a date is specified, the date must be a date on or after the date of filing. |
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This limited liability company shall exist for |
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(Optional) |
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(Period of existence) |
The address to which interested persons may direct requests for copies of any operating agreement
and any bylaws of this limited liability company is
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(Optional) |
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(Name) |
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(Street)
NOTE: P.O. Box Addresses are NOT acceptable. |
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Last Revised: May 2002
Page 1 of 5
Complete the information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned authorized member, manager or representative of
County Land Development Sanitary Landfill, LLC
(name of limited liability company)
hereby appoint the following to be statutory agent upon whom any process, notice or demand
required or permitted by statute to be served upon the limited liability company may be served. The
name and address of the agent is:
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C T Corporation System |
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(Name of Agent) |
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1300 East 9th Street |
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(Street)
NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland |
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44114 |
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Must be authenticated by an |
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/s/ Jo Lynn White |
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December 15, 2004 |
authorized representative |
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Authorized Representative
Jo Lynn White |
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Authorized Representative |
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ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for
(name of limited liability company)
hereby acknowledges and accepts the appointment of agent for said limited liability Company.
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C T Corporation System |
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By: |
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(Agents signature) |
PLEASE SIGN PAGE (3) AND SUBMIT COMPLETED DOCUMENT
Last Revised: May 2002
Page 2 of 5
Complete the information in this section if box (2) is checked.
The address to which interested persons may direct requests for copies of any operating agreement
and any bylaws of this limited liability company is
15880 N Greenway-Hayden Loop, Suite 100
(Street)
NOTE: P.O. Box Addresses are NOT acceptable.
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Scottsdale |
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Arizona |
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85260 |
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(Zip Code) |
The name under which the foreign limited liability company desires to transact business in
Ohio is
County Land Development Sanitary Landfill, LLC
The limited liability company hereby appoints the following as its agent upon whom process
against the limited liability company may be served in the state of Ohio. The name and complete
address of the agent is
C T Corporation System
(Name)
1300 East 9th Street
(Street)
NOTE: P.O. Box Addresses are NOT acceptable.
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Cleveland |
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Ohio |
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44114 |
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(State) |
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(Zip Code) |
The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the OHIO
SECRETARY OF STATE if:
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the agent cannot be found, or |
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the limited liability company fails to designate another agent when required to do so, or |
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the limited liability companys registration to do business in Ohio expires or is cancelled. |
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REQUIRED |
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Must be authenticated (signed) |
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/s/ Jo Lynn White |
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December 15, 2004 |
by an authorized representative |
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Authorized Representative |
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(See Instructions) |
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Jo Lynn White |
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Print Name |
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Authorized Representative |
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Last Revised: May 2002
Page 3 of 5
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www.state.oh.us/sos
e-mail: busserv@sos.state.oh.us |
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Prescribed by J. Kenneth Blackwell
Ohio Secretary of State Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453) |
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Expedite this Form: (Select One)
Mail Form to one of the Following: PO Box 1390
¡ Yes
Columbus, OH 43216
*** Requires an additional fee of $100 ***
PO
Box 1028
¡ NO
Columbus, OH 43216 |
Limited Liability Company Certificate of
Amendment / Restatement / Correction
(Domestic or Foreign)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
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(1) Domestic Limited Liability Company |
(2) Foreign Limited Liability Company |
þ Amendment (129-LAM) |
o Correction (135-LFC) |
o Restatement (142-LRA) |
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12/16/2004 |
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(Home State) |
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(Qualifying in Ohio on MM/DD/YY) |
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(Date of Organization) |
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The undersigned authorized |
County Land Development Sanii |
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1506570 |
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representative of |
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(Name) |
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(Registration Number) |
The above stated Limited Liability Company does hereby certify that the undersigned is duly
authorized to execute this certificate, and hereby certifies that the above named Limited Liability
Company þ Amend o Restate o Correct the following:
Complete the information in this section if box (1) Restatement is checked, all sections below must
be completed.
If box (1) Amendment or box (2) Correction is checked only complete sections that applies.
FIRST: The name of said limited liability company shall be:
County Land Development Landfill, LLC
(the name must include the words limited liability company, limited, Ltd., Ltd, LLC, or
L.L.C.)
SECOND: (OPTIONAL) This limited liability company shall exist for a period of
THIRD: The address to which interested persons may direct requests for copies of any operating
agreement and any bylaws of this limited liability company is (OPTIONAL):
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(street address) |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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(city, township, or village) |
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(state) |
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(zip code) |
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Please check if additional provisions attached hereto are incorporated herein and made a part of
these articles of organization. |
FOURTH: Purpose (OPTIONAL)
Last Revised: May 2002
Page 1 of 3
Complete the information in this section if box (2) is checked and the Limited Liability
Company wants to
appoint a statutory agent
The limited liability company hereby appoints the following as its agent upon whom process against
the limited liability company may be served in the state of Ohio. The name and complete address of
the agent is:
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(Name) |
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(Street)
NOTE: P.O. Box Addresses are NOT acceptable. |
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Ohio |
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(State) |
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(Zip Code) |
The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the OHIO
SECRETARY OF STATE if:
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the agent cannot be found or, |
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B. |
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the limited liability company fails to designate another agent when required to do so, or, |
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the limited liability companys registration to do business in Ohio expires or is cancelled. |
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REQUIRED |
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Must be authenticated (signed) |
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/s/ Jo Lynn White |
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December 13, 2005 |
by an authorized representative |
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Authorized Representative |
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Date |
(See Instructions) |
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Jo Lynn White |
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Authorized Representative |
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Authorized Representative |
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Date |
Last Revised: May 2002
Page 2 of 3
exv3w409
Exhibit 3.409
OPERATING AGREEMENT OF
COUNTY LAND DEVELOPMENT SANITARY LANDFILL, LLC
This
Operating Agreement is executed as of
16th day of December, 2004, by Browning-Ferris Industries
of Ohio, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings set
forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company pursuant to the
provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is County Land Development Sanitary Landfill, LLC. The name of
the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the business of solid
waste management and disposal, and to engage in any other business or activity permitted under Ohio
law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate entity for
state law purposes, but be disregarded as an entity and operated in a manner consistent with its
treatment as a division of the Member for federal and state income tax purposes. It also is the
intent of the Member that the Company not be operated or treated as a partnership for purposes of
Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Ohio shall be CT Corporation
System, 1300 East 9th Street, Cleveland, Ohio 44114, County of Cuyahoga. The registered
office may be changed to any other place within the State of Ohio upon the consent of the Member.
The Company may maintain a registered office in any state within which it does business at any
location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Company in Ohio are CT Corporation System, 1300 East 9th
Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be changed
upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of Formation is
filed in Ohio, and shall continue in perpetuity until the Company is dissolved as set forth in this
Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be filed in the
State of Ohio. The Member shall file any amendments to the Certificate of Formation deemed
necessary by it to reflect amendments to this Agreement adopted by the Member in accordance with
the terms hereof. Upon the approval of the Certificate of Formation, or any amendments thereto, by
the Member in accordance with this Agreement, the Member or a designee of a Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the Member are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or other assets
set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make additional Capital
Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities, contracts or
any other obligations of the Company. Except as agreed upon by the Member, and except as otherwise
provided by the Act or by any other applicable state law, the Member shall be liable only to make
the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be required to
make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed to
benefit any creditor of the Company, and no creditor of the Company will be entitled to require the
Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which shall bear
interest and be repaid on such reasonable terms and conditions as may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed to
the Member, at such times as may be determined by the Member.
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SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and its affairs
shall be made or taken by the Member. Any party dealing with the Company shall be permitted to rely
absolutely on the signature of the Member as binding on the Company, without any duty of further
inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons as officers
of the Company. The officers shall have the authority to act for and bind the Company to the extent
of the authority granted to them in resolutions adopted by the Member on behalf of the Company. The
officers of the Company may include a president, vice presidents, a secretary, a treasurer, and
such other officers as the Member deems appropriate. The officers of the Company will be entitled
to such compensation for their services as the Member may determine from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify and save
harmless the Member, its officers and directors, and the officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all accounts, books
and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise disposed of
without the consent of the Member. Any attempted transfer, assignment, encumbrance, hypothecation
or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the proceeds
of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 1705.47 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 1705.44 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Ohio Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the Member, or
court-appointed trustee, if there is no remaining Member, shall take full account of the Companys
liabilities and assets, and such assets shall be liquidated as promptly as is consistent with
obtaining the fair value thereof. During the period of liquidation, the business and affairs of the
Company shall continue to be governed by the provisions of this Agreement, with the management of
the Company continuing as provided in Section 5 hereof.
The proceeds from liquidation of the Companys property, to the extent sufficient therefor, shall
be applied and distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including those to
the Member as a creditor, to the extent permitted by law, and the establishment of any necessary
reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant to
Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the Company have
been paid and discharged or adequate provisions have been made therefor and all of the remaining
property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Ohio Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of the Member and its
heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If any term or
provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to perform all
further acts and execute, acknowledge and deliver any documents which may be reasonably necessary
or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to
masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
8.6 Ohio Law. The laws of the State of Ohio shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the meanings specified
in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Revised Code Chapter 1705,
as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means
this Operating Agreement, as amended from time to time. Words such as herein, hereinafter,
hereof, hereto and hereunder, refer to this Agreement as a whole, unless the context
otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the net fair
market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding
provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and any limited
liability company continuing the business of this Company in the event of dissolution as herein
provided.
Member means any Person identified as a Member in the heading to this Agreement. If any Person is
admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall also be
deemed to refer to such Person. Member refers collectively to all Persons who are designated as a
Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less the portion
thereof used to pay or establish reserves for Company expenses, debt payments (including payments
on Member Loans), capital improvements, replacements and contingencies, all as determined by the
Member.
Person means any individual, partnership, corporation, limited liability company, trust or other
entity.
Profits
and Losses mean, for each fiscal year or other period, an amount equal to the Companys
taxable income or loss for such year or period, determined in accordance with Code Section 703(a),
reduced by any items of income or gain subject to special allocation pursuant to this Agreement,
and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such regulations may
be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BROWNING-FERRIS INDUSTRIES OF OHIO,
INC., a Delaware corporation
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By: |
/s/ Jo Lynn White
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Its: |
Secretary |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Browning-Ferris Industries of Ohio, Inc.
15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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$ |
100.00 |
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exv3w410
Exhibit 3.410
CERTIFICATE OF INCORPORATION
OF
COUNTY LANDFILL, INC.
The undersigned incorporator, in order to form a corporation under the General Corporation Law of
Delaware, certifies as follows:
FIRST: The name of the corporation is County Landfill, Inc.
SECOND: The registered office of the corporation is to be located at 32 Loockerman Square, Suite
L-100, Dover, Kent County, Delaware 19901. The name of its registered agent at that address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The corporation shall have the authority to issue 1000 shares of common stock, par value
$0.01 per share.
FIFTH: The name and mailing address of the incorporator are as follows:
Stephen
W. Rubin, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between the corporation and its creditors
or any class of them and/or between the corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the application of any
receiver or receivers appointed for the corporation under the provisions of §291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for the corporation under the provisions of §279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of the corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the corporation, as the
case may be, agree to any compromise or arrangement and to any reorganization of the corporation as
a consequence of such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application has been made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the corporation, as the case may be,
and also on the corporation.
EIGHTH: A director of this corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for the breach of any fiduciary duty as a director, except in the
case of (a) any breach of the directors duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) under section 174 of the General Corporation Law of the State of Delaware or
(d) for any transaction from which the director derives an improper personal benefit. Any repeal or
modification of this Article by the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such repeal or modification.
NINTH: The corporation shall, to the fullest extent permitted by law, as the same is now or may
hereafter be in effect, indemnify each person (including the heirs, executors, administrators and
other personal representatives of such person) against expenses
including attorneys
fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by
such person in connection with any threatened, pending or completed suit, action or proceeding
(whether civil, criminal, administrative or investigative in nature or otherwise) in which such
person may be involved by reason of the fact that he or she is or was a director or officer of the
corporation or is or was serving any other incorporated or
unincorporated enterprise in such capacity at the request of the corporation.
TENTH: Unless, and except to the extent that, the by-laws of the corporation shall so require, the
election of directors of the corporation need not be by written ballot.
ELEVENTH: The corporation hereby confers the power to adopt, amend or repeal bylaws of the
corporation upon the directors.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of September, 1995.
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/s/ Stephen W. Rubin, Esq.
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Stephen W. Rubin, Esq. |
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Sole Incorporator |
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4. (Strike out if a limited partnership): Such change was authorized by the Board of Directors of
the corporation.
IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership has caused this statement
to be signed by a duly authorized officer this 13th day of November, 1998.
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COUNTY LANDFILL INC.
Name of Corporation/Limited Partnership
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BY: |
/s/
D. W. Slager |
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(Signature) |
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TITLE: |
President |
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exv3w411
Exhibit 3.411
AMENDED AND RESTATED BYLAWS
OF
COUNTY LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar
communications equipment through which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to
this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be
authorized by the Board of Directors. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to time may be assigned
to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other officers and to prescribe
their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60)
days prior to any other action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words Corporate Seal, Delaware. The
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against expenses (including attorneys fees)
actually and reasonably incurred by him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation; except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the power
or the obligation to indemnify him against such liability under the provisions of this Article
VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w412
Exhibit 3.412
FIRST AMENDMENT TO PARTNERSHIP AGREEMENT OF
COUNTY LINE LANDFILL PARTNERSHIP
This First Amendment to Partnership Agreement of County Line Landfill Partnership (the First
Amendment) is entered into effective as of December 1, 1998, by and between Allied Waste North
America, Inc., a Delaware corporation (AWNA) and Allied Waste Landfill Holdings, Inc., a Delaware
corporation (AWLH)(collectively, the Partners).
RECITALS
D. County Line Landfill Partnership (the Partnership) was formed as an Indiana general
partnership pursuant to that certain Partnership Agreement of County Line Landfill Partnership,
dated as of December 31, 1997 (the Agreement) between Allied Waste Industries of Indiana, Inc.,
an Indiana corporation (AWII) and AWLH. Unless specifically defined herein, capitalized terms
appearing in this First Amendment shall have the meanings given those terms in the Agreement.
E. Pursuant to an Agreement and Plan of Merger between AWII and AWNA, among others, dated
October 30, 1998, AWII merged with and into AWNA, resulting in a transfer by operation of law of
AWIIs interest in the Partnership to AWNA.
F. The Partners desire to acknowledge the merger and the admission of AWNA as a substituted
partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
3. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby consents
to (a) the transfer described in Recital B above of AWIIs interest in the Partnership to AWNA and
(b) the admission of AWNA as a substituted partner.
4. Acceptance. AWNA hereby acknowledges the assumption of all of AWIIs
responsibilities and obligations with respect to the Partnership, and agrees to be bound by the
provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all terms
and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste North America, Inc., |
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a Delaware corporation |
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By:
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/s/ D. W. Slager
D. W. Slager, Vice President
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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By:
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/s/ D. W. Slager
D. W. Slager, President
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste North America, Inc.
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99 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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TOTAL |
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100 |
% |
-3-
PARTNERSHIP AGREEMENT
OF
COUNTY LINE LANDFILL PARTNERSHIP
This Partnership Agreement is entered into as of December 31, 1997, between Allied Waste
Industries of Indiana, Inc., an Indiana corporation and Allied Waste Landfill Holdings, Inc., a
Delaware corporation, each individually referred to herein as a Partner, and collectively as
Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is County Line Landfill Partnership. The name of
the Partnership may be changed upon the consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880 North
Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050, unless
the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described in
Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to the
Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of
such Partners Capital Account without the written consent of the other Partner. Under
circumstances requiring a return of capital, no Partner shall have the right to receive property
other than cash, except as may be specifically provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of the
Partners. No Partner shall be required to make a Partner Loan unless such Partner has agreed in
writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the Partners
in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-1(b) and
1.704-2. If the Partnership incurs nonrecourse deductions or partner nonrecourse
deductions, or if there is any change in the Partnerships minimum gain, as defined in such
Regulations, the allocation of Profits, Losses and items thereof to the Partners shall be modified
in a reasonable manner deemed necessary or advisable by the Partners, upon appropriate legal or
tax advice, to comply with such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority in
Interest of the Partners. The Partners shall devote such time and effort as is necessary for the
management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the Partnership
in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall coordinate
with the Partnerships accountants the preparation of tax information and tax returns relating to
the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge, hypothecation or
other disposition of a Partnership interest in violation of this Section 8 shall be void and shall
not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The expiration of the term of the Partnership as set forth herein, unless that term is
extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities and the
establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital contributions
and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered personally to
the Partner to whom the same is directed, or sent by regular, registered or certified mail, return
receipt requested, addressed as follows: if to the Partnership, to the Partnership at the address
set forth in Section 1.5 hereof, or to such other address as the Partnership may from time to time
specify by notice to the Partners in accordance with this Section 10.1, or, if to a Partner, to
such Partner at the address for such Partner set forth below the Partners name on Exhibit A, or to
such other address as the Partner may from time to time specify by notice to the Partnership in
accordance with this Section 10.1. Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date so delivered, if delivered personally or if sent by
regular mail, or as of the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, if sent by registered or certified mail, postage
and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that it
may have to maintain any action for partition with respect to any of the Partnerships property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All counterparts
shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended
from time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained for
such Partner in accordance with Code § 704(b) and Regulations promulgated thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Majority
in Interest of the Partners means Partners owning a simple majority of the
Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources,
less the portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt
payments, (3) contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and
any other Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment
adopted in accordance with Section 7 hereof.
Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any
Partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement. The
Partners Percentage Interests are set forth opposite their names on Exhibit A attached hereto.
Person means any individual, partnership, corporation, trust, limited liability
company or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Partnerships taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), adjusted as deemed necessary by the Partners to comply with Code
Section
704(b) and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Industries of Indiana, Inc. |
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Allied Waste Landfill Holdings, Inc., |
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an Indiana corporation |
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a Delaware corporation |
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By:
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/s/ Larry D. Henk
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By:
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/s/ D. W. Slager
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Its: |
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Vice President |
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Its: |
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President |
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
Allied Waste Industries of Indiana, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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All right, title and
interest in and to
the operating assets
and liabilities of its
waste operations
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99 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
197,531 |
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1 |
% |
exv3w413
Exhibit 3.413
CERTIFICATE OF FORMATION
COURTNEY RIDGE LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this instrument
is Courtney Ridge Landfill, LLC.
2. Registered Office; Registered Agent. The address of the registered office of
the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 5th day of October, 1999.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member
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By: |
/s/ D. W. Slager
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D. W. Slager, Vice President, Operations |
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exv3w414
Exhibit 3.414
OPERATING AGREEMENT
OF COURTNEY RIDGE LANDFILL, LLC
This Operating Agreement (the Agreement) of Courtney Ridge Landfill, LLC (the Company) is
executed as of October 5, 1999, by Allied Waste North America, Inc., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is Courtney Ridge Landfill, LLC. All business of
the Company shall be conducted in the Company name. The Company shall hold its property in the
name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills and providing waste transportation services, and to
engage in any other activity permitted under Delaware law and the laws of any jurisdiction in
which the Company may do business.
1.5 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.7 Certificate of Formation. The Member shall file any amendments to the Certificate
of Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Member
in accordance with the terms hereof. Upon the approval of any amendments thereto, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are: Allied Waste North America,
Inc., a Delaware corporation, 15880 N. Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement, which is incorporated herein by
this reference. The Member shall not be obligated to make additional Capital Contributions to the
Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be determined by
the Member. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically and to
the Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the
consent or approval of the Member under this Agreement, shall be made within the sole discretion
of the Member. Any party dealing with the Company shall be permitted to rely absolutely on the
signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them herein or in resolutions duly adopted by the Member
on behalf of the Company. The officers of the Company may include a president, vice presidents, an
executive vice president, a secretary, a treasurer, and such other officers as the Member deems
appropriate. The officers of the Company will be entitled to such compensation for their services
as the Member may reasonably determine from time to time. Unless otherwise specified by the
Member, the following officers shall have the authority to engage in the activities set forth with
respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
2
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him
by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Executive Vice President, if there is one acting, or
in the absence of an Executive Vice President, the Vice President or the Vice Presidents if there
are more than one, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the Member. The
Treasurer shall disburse the funds of the Company as may be ordered by the Member, taking proper
vouchers for such disbursements, and shall render to the President, from time to time, when the
Member so requires, an account of all his transactions as Treasurer and of the financial condition
of the Company. If required by the Member, the Treasurer shall give the Company a bond in such sum
and with such surety or sureties as shall be satisfactory to the Member for the faithful
performance of the duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
3
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a
bond in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case
of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection
of the proceeds of such sale;
4
(b) The election by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under § 18-802 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the
Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until articles of
dissolution have been filed with the Delaware Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys
liabilities and assets upon dissolution. Any assets not required to discharge any liabilities
of the Company shall be distributed to the Member. Upon the completion of the winding up,
liquidation and distribution of the assets, the Company shall be deemed terminated. The Company
shall comply with any applicable requirements of the Act pertaining to the winding up of the
affairs of the Company and the final distribution of its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company
have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, articles of
dissolution shall be executed and filed by the Member with the Delaware Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be
deemed to
5
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Articles of Organization has the meaning given that term in Section 1.7
hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Operating Agreement
is intended to or shall be for the benefit of any Person not a party hereto, and no such
other
Person shall have any right or cause of action hereunder.
6
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Steven M. Helm, |
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Vice President Legal |
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7
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
Allied Waste North America, Inc. |
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15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
100.00 |
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100 |
% |
8
exv3w415
Exhibit 3.415
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ARTICLES OF ORGANIZATION
(R.5. 12:1301) |
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Domestic Limited Liability Company
Enclose $75.00 filing fee
Make remittance payable to
Secretary of State
Do not send cash
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Return to: Commercial Division
P. O. Box 94125
Baton Rouge, LA 70804-9125
Phone (225) 925-4704
Web Site: www.sos.louislana.gov |
STATE OF ARIZONA Check one: þ Business o Nonprofit
PARISH/COUNTY OF MARICOPA
1. |
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The name of this limited liability company is: Crescent Acres Landfill, LLC |
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2. |
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This company is formed for the purpose of: (check one) |
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þ |
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Engaging in any lawful activity for which limited liability companies may be formed. |
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o |
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(use for limiting activity) |
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3. |
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The duration of this limited liability company is: (may be perpetual) perpetual |
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4. Other provisions: |
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AL ATER SECRETARY OF STATE
RECEIVED & FILED
DATE OCT 13 2005
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Signatures: |
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/s/ Jo Lynn White
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Jo Lynn White, Authorized Representative
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On this 11th day of October, 2005, before me, personally appeared Jo Lynn White, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that he/she executed it as his/her
free act and deed.
NOTARY NAME MUST BE TYPED OR PRINTED WITH NOTARY [ILLEGIBLE]
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/s/ [ILLEGIBLE]
Notary Signature
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(See instructions on back)
exv3w416
Exhibit 3.416
OPERATING AGREEMENT OF
CRESCENT ACRES LANDFILL, LLC
This Operating Agreement is executed as of October 13, 2005, by Browning-Ferris
Industries, LLC, a Delaware limited liability company (the Member) as the sole member of the
Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is Crescent Acres Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Louisiana law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Louisiana shall
be CT Corporation System, 8550 United Plaza Boulevard, Baton Rouge, Louisiana 70809, Parish of
East Baton Rouge. The registered office may be changed to any other place within the State of
Louisiana upon the consent of the Member. The Company may maintain a registered office in any
state within which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Louisiana are CT Corporation System, 8550
United Plaza Boulevard, Baton Rouge, Louisiana 70809. The Companys agent for service of legal
process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Louisiana, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Louisiana. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company,
which shall bear interest and be repaid on such reasonable terms and conditions as may be
approved
by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of
the proceeds of such sale;
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(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 12:1334 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 12:1336
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Louisiana Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all
of the remaining property and assets of the Company have been distributed to the Member, a
certificate of cancellation shall be executed and filed by the Member with the Louisiana
Secretary
of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
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8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Louisiana Law. The laws of the State of Louisiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
(a) Act means the Louisiana Limited Liability Company Act, as set forth in Louisiana RS
12:1301, et. seg., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement,
5
Member shall also be deemed to refer to such Person. Member refers collectively to all Persons
who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BROWNING-FERRIS INDUSTRIES, LLC,
a Delaware limited liability company
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By: |
/s/ Steven M. Helm
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Steven M. Helm |
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Vice President |
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EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Browning-Ferris Industries, LLC |
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15880 N Greenway-Hayden Loop
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$ |
100.00 |
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Suite 100
Scottsdale, AZ 85260 |
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exv3w417
Exhibit 3.417
FILED
In the office of the
Secretary of State
of the State of California
OCT 31 1996
ARTICLES OF INCORPORATION
OF
CROCKETT GARBAGE SERVICE, INC.
ARTICLE I.
The name of the corporation is CROCKETT GARBAGE SERVICE, INC.
ARTICLE II.
The purpose of the corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of California other than the banking
business, the trust company business, or the practice of a profession permitted to be incorporated
by the California Corporations Code.
ARTICLE III.
The name and address in this state of the corporations initial agent for service of process
is:
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Name
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Address |
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Richard E. Norris
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3260 Blume Drive, Suite 200 |
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Richmond, CA 94806 |
ARTICLE IV.
The corporation is authorized to issue only one class of stock, having a total number of 1,000
shares.
IN WITNESS WHEREOF, the undersigned, who is the incorporator of this corporation, has executed
these Articles of Incorporation on October 31, 1996.
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/s/ Richard E. Norris
RICHARD E. NORRIS INCORPORATOR
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I declare that:
1. I am the person whose name is subscribed below.
2. I am the sole incorporator of and I have executed these Articles of
Incorporation.
3. The foregoing Articles of Incorporation are my act and deed.
Executed on October 31, 1996 at Richmond California.
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/s/ Richard E. Norris
RICHARD E. NORRIS
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FILED
In the office of the Secretary
of State of the State of California
DEC 4 1996
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
CROCKETT GARBAGE SERVICE, INC.
RICHARD E. NORRIS certifies that:
1. He is the sole incorporator of Crockett Garbage Service, Inc., a California corporation.
2. He hereby adopts the following amendment of the Articles of Incorporation of said corporation:
Article I is amended to read as follows:
the name of the corporation is Crockett
Sanitary Service, Inc.
3. No directors were named in the original Articles of Incorporation of the
above-named corporation and none have been elected.
4. The corporation has issued no shares.
5. I further declare under penalty of perjury under the laws of the State of California that
the matters as set forth in this certificate are true and correct of my own knowledge.
Date: December 3, 1996
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/s/ Richard E. Norris
RICHARD E. NORRIS
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exv3w418
Exhibit 3.418
SECOND AMENDED AND RESTATED BYLAWS
OF
CROCKETT SANITARY SERVICE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, as the same may be amended from time to time or
limited by applicable state law, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
5
or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding
capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w419
Exhibit 3.419
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 06/20/1997
971204660 - 2764758
CERTIFICATE OF LIMITED PARTNERSHIP
OF
CROW LANDFILL TX, L.P.
The undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies
as follows:
|
I. |
|
The name of the limited partnership is Crow Landfill TX, LP. |
|
II. |
|
The address of the Partnerships registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
name of
the Partnerships registered agent for service of process in the State of Delaware
at such address
is The Corporation Trust Company. |
|
III. |
|
The name and mailing address of the general partner are as follows: |
|
|
|
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale,
Arizona 85260 |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited
Partnership of Crow Landfill TX, LP as of June 19, 1997.
|
|
|
|
|
|
Allied Waste Landfill Holdings, Inc., a Delaware corporation, General Partner
|
|
|
By |
/s/ Steven M. Helm |
|
|
|
Steven M. Helm, Secretary |
|
|
exv3w420
Exhibit 3.420
AGREEMENT OF LIMITED PARTNERSHIP OF
CROW LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of June 18, 1997, by and between
Allied Waste Landfill Holdings, Inc., a Delaware corporation, as the General Partner, and Crow
Landfill TX, LLC, as the Limited Partner, on the following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Crow Landfill TX, LP. The General Partner
may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited
Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon the
unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership
or to exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to
2
the Partnership as a result of such withdrawal shall be offset against amounts that would
otherwise be distributed to such Partner.
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage
Interests at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c) or Treasury Regulations promulgated thereunder, all Profits, Losses and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion
to their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers which may be possessed by general partners under the Act. If two or more Persons are
serving as General Partners, decisions regarding the management of the Partnership and its
business and affairs shall be made by the consent of a majority in number of the General Partners
then serving. The rights and powers which the General Partner may exercise include, but are not
limited to, the following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
3
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or
renewals of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts which constitute a condition precedent
to acts by the General Partner or which are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the General Partner deems appropriate. The
officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of
4
the Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets which does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature which do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer which does
not comply with the provisions of this Section 8 shall be void and shall not cause or constitute a
dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
5
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. In the event any
Person ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining
General Partners, if any, shall have the right and the power to continue the Partnership and its
business without dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has
no General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership
and its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
6
(c) The failure of the remaining General Partners, if any, to continue the Partnership and
its business without dissolution pursuant to Section 9.2 hereof in the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnership property, and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other
than those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all
of the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered personally to
the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this Section
11.1, or, if to a Partner, to such Partner at the address for such Partner set forth on Exhibit A
to this Agreement, or to such other address as the Partner may from time to time
7
specify by notice to the Partnership and the other Partners in accordance with this Section 11.1
Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer not
otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners interest
any rights not specifically granted under this Agreement, or (c) to supersede or modify in any
manner any provision of Section 8 hereof.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions which the General Partner may take and all determinations which the General Partner
may make pursuant to this Agreement may be taken and made at the sole and absolute discretion of
the General Partner.
8
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not
ceased to be a General Partner pursuant to the terms of this Agreement. General Partners means
all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
9
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on Exhibit
A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in
accordance with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Secretary |
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Crow Landfill TX, LLC,
a Delaware limited liability company,
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Secretary |
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10
EXHIBIT A
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Initial Capital |
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Percentage |
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Names and Addresses of Partners: |
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Contribution |
|
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Interest |
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General Partner: |
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$ |
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1 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Limited Partner: |
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$ |
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99 |
% |
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Crow Landfill TX, LLC
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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11
FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF
CROW LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Crow Landfill TX, LP (the First
Amendment) is entered into effective as of December 31, 1998, by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH) and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH)(collectively, the
Partners).
RECITALS
A. Crow Landfill TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State dated June 20, 1997, and the related Limited Partnership Agreement of Crow
Landfill TX, LP, dated as of June 18, 1997 (the Agreement) between AWLH and Crow Landfill TX,
LLC, a Delaware limited liability company (CROW). Unless specifically defined herein,
capitalized terms appearing in this First Amendment shall have the meanings given those terms in
the Agreement.
B. Pursuant to an Agreement and Plan of Merger between AWSH and CROW, among others, dated
December 29, 1998, CROW merged with and into AWSH, resulting in a transfer by operation
of law of CROWs interest in the Partnership to AWSH.
C. The Partners desire to acknowledge the merger and the admission of AWSH as a substituted
limited partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of CROWs interest in the Partnership to
AWSH and (b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of CROWs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all
terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
General Partner
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By: |
/s/ D. W. Slager
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D. W. Slager, President |
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Allied Waste Systems Holdings, Inc.,
a Delaware corporation
Limited Partner
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By: |
/s/ Michael G. Hannon
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Michael G. Hannon |
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Vice President |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste Systems Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
|
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99 |
% |
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|
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Allied Waste Landfill Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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1 |
% |
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|
|
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TOTAL |
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|
100 |
% |
-3-
exv3w421
Exhibit 3.421
LLC-1011
(07/04)
COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
ARTICLES OF ORGANIZATION OF A
DOMESTIC LIMITED LIABILITY COMPANY
Pursuant to Chapter 12 of Title 13.1 of the Code of Virginia the undersigned states as
follows:
1. |
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The name of the limited liability company is |
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Charlotte County Development Company,
LLC |
. |
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(The name must contain the words limited company or limited liability company or the
abbreviation L.C., LC, L.L.C. or LLC) |
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2. |
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A. The name of the limited liability companys initial
registered agent is C T Corporation System. |
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B. The registered agent is (mark appropriate box): |
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(1) |
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an INDIVIDUAL who is a resident of Virginia and |
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o |
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a member or manager of the limited liability company. |
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o |
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a member or manager of a limited liability company that is a member or manager of the
limited liability company. |
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o |
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an officer or director of a corporation that is a member or manager of the limited
liability company. |
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o |
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a general partner of a general or limited partnership that is a
member or manager of the limited liability company. |
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o |
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a trustee of a trust that is a member or manager of the limited liability
company. |
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o |
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a member of the Virginia State Bar. |
OR
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(2) |
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þ a domestic or foreign stock or nonstock corporation, limited liability company or
registered limited liability partnership authorized to transact
business in Virginia. |
3. |
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The limited liability companys initial registered office address, including the street and
number, if any, which is identical to the business office of the initial registered agent, is |
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4701 Cox Road, Suite 301 |
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(number/street) |
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Glen Allen,
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VA
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23060-6802 |
, |
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(city or town)
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(zip) |
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which is located in the o
city or þ county of Henrico. |
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4. |
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The limited liability companys principal office address, including the street and number, if
any, is |
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15880 N Greenway-Hayden Loop, Suite 100 |
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(number/street) |
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Scottsdale, Arizona 85260
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. |
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(city or town)
(state)
(zip) |
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/s/ Jo Lynn White
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September 10, 2004 |
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(signature)
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(date) |
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Jo Lynn White, Authorized Representative
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(480) 627-2700 |
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(printed name)
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(telephone number (optional)) |
SEE INSTRUCTIONS ON THE REVERSE
LLC-1014N
(07/05)
COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
ARTICLES OF AMENDMENT
CHANGING THE NAME OF A VIRGINIA LIMITED LIABILITY COMPANY
By the Members
The undersigned, pursuant to § 13.1-1014 of the Code of Virginia, executes these articles and
states as follows:
1. |
|
The current name of the limited liability company is
Charlotte County Development Company, LLC. |
|
2. |
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The name of the limited liability company is changed to
Cumberland County Development Company, LLC. |
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3. |
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The foregoing amendment was adopted by a majority vote of the members entitled to vote on |
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01/26/06 . |
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(date) |
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4. |
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CHECK IF APPLICABLE (see instructions): |
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þ |
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The person signing this document on behalf of the limited liability company has been
delegated the right and power to manage the companys business and affairs. |
Executed in the name of the limited liability company by:
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January 26, 2006 |
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(signature)
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(date) |
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Jo Lynn White
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Secretary |
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(printed name)
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(title) |
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S132690
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480-627-2700 |
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(limited liability companys SCC ID no.)
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(telephone number (optional)) |
SEE INSTRUCTIONS ON THE REVERSE
COMMONWEALTH OF VIRGINIA
STATE CORPORATION COMMISSION
ARTICLES OF AMENDMENT
VIRGINIA LIMITED LIABILITY COMPANY
ARTICLES OF AMENDMENT OF
Cumberland
County Development Company, LLC
The
undersigned limited liability company, pursuant to Title 13.1,
Chapter 12, Article 2 of the
Code of Virginia, hereby submit(s) the following articles of amendment and sets forth:
1. |
|
The name of the limited liability company is Cumberland
County Development Company, LLC. |
|
2. |
|
The new principal address of Cumberland County Development
Company, LLC is 18500 North Allied
Way, Phoenix, Arizona 85054 |
|
3. |
|
The foregoing amendment was adopted by the limited liability company on 10/30/06 |
|
4. |
|
The amendment to the articles of organization was approved by a vote of the members in
accordance with the provisions of the Virginia Limited Liability Company Act. |
Executed in the name of the limited liability company by.
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Signature:
|
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/s/ Jo Lynn White
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Date:
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November 10, 2006 |
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Printed Name:
|
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Jo Lynn White
|
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Title:
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Secretary of Allied Waste
North America, Inc., Member of
Cumberland County Development
Company, LLC |
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SCC ID no
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S132690-1 |
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exv3w422
Exhibit 3.422
OPERATING AGREEMENT OF
CHARLOTTE COUNTY DEVELOPMENT COMPANY, LLC
This Operating Agreement is executed as of September 13, 2004, by Allied Waste North
America, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall
have the meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability
company pursuant to the provisions of the Act and upon the terms and conditions set forth in
this Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is Charlotte County Development Company, LLC.
The name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct
the business of solid waste management and disposal, and to engage in any other business or
activity permitted under Virginia law and the laws of any jurisdiction in which the Company
may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a
separate entity for state law purposes, but be disregarded as an entity and operated in a
manner consistent with its treatment as a division of the Member for federal and state
income tax purposes. It also is the intent of the Member that the Company not be operated or
treated as a partnership for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Virginia
shall be CT Corporation System, 4701 Cox Road, Suite 301, Glen Allen, Virginia, County of
Henrico. The registered office may be changed to any other place within the State of
Virginia upon the consent of the Member. The Company may maintain a registered office in any
state within which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the
registered agent for service of legal process on the Company in Virginia are CT Corporation
System, 4701 Cox Road, Suite 301, Glen Allen, Virginia. The Companys agent for service of
legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification
of Formation is filed in Virginia, and shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Virginia. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2-4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by
the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 347.143 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 347.141
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Virginia Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Virginia Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Virginia Law. The laws of the State of Virginia shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Virginia Limited Liability Company Act, as set forth in Code of
Virginia § 13.1-1000, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc.
15880 N
Greenway-Hayden Loop Suite 100
Scottsdale, AZ 85260 |
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$ |
100.00 |
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exv3w423
Exhibit 3.423
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FILED |
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AUG 11 1992 |
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GEORGE H. RYAN |
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SECRETARY OF STATE |
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Submit in Duplicate
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File # |
Payment must be made by
Certified Check, Cashiers
Check or a Honey Order,
payable to Secretary of
state
DO NOT SEND CASH !
This Space For Use By
Secretary of State
Date
8-11-92
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License Fee
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$
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Franchise Tax
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$ |
25.00 |
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Filing Fee
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$ |
75.00 |
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100.00 |
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Clerk 2
JIM EDGAR
Secretary of State
State of Illinois
ARTICLES OF INCORPORATION
Pursuant
to the provisions of The Business Corporation Act of 1983, the undersigned
incorporator(s) hereby adopt the following Articles of Incorporation.
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ARTICLE ONE |
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The name of the corporation is (Shall contain the word corporation, company, incorporated, limited, or an abbreviation thereof) |
CONTINENTIAL WAST INDUSTRIES VENTURE, INC.
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ARTICLE TWO
PAID
AUG 11 1992 |
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The name and address of the initial registered agent and its registered office are:
Registered Agent -
Thomas Volini
Registered Office -
4052 Frankin Street
Western Springs, IL 60558 |
EXPEDITED
AUG 11 1992
SECRETARY OF STATE |
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ARTICLE THREE |
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The purpose or purposes for which the corporation is organized are: |
The transaction of any and all lawful business for which corporations may be
incorporated under the Illinois Business Corporation Act of 1983.
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ARTICLE FOUR |
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Paragraph 1: The authorized shares shall be: |
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CLASS |
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PAR VALUE PER SHARE |
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NUMBER OF SHARES AUTHORIZED |
Common
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No par value
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1000 |
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Paragraph 2: The preferences,qualifications,
limitations, restrictions and the special or
relative rights in respect of the shares of each
class are: None
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ARTICLE FIVE |
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The number of shares to be issued initially, and the consideration to be received by
the corporation therefore, are; |
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CLASS |
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PAR VALUE PER SHARE |
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NUMBER OF SHARES ISSUED |
Common
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No par value
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1000 |
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CONSIDERATION TO BE RECEIVED THEREFOR: $100.00
The number of directors constituting the initial board of directors of
the corporation is and the names and addresses of the persons who are to
serve as directors until the first annual meeting of shareholders or until
their successors be elected and qualify are: One (1)
Thomas Volini
4052 Frankin Street
Western Springs, IL 60558
(a) It is estimated that the value of the
property to be owned by the corporation for the
following year wherever located will be:
(b) It is estimated that the value of the
property to be located within the State of
Illinois during the following year will be:
(c) It is estimated that the gross amount of
business which will be transacted by the
corporation during the following year will be:
(d) It is estimated that the gross amount of
business which will be transacted from places of
business in the State of Illinois during the
following year will be:
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ARTICLE EIGHT |
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OTHER PROVISIONS |
Attach a separate sheet of this size for any other provision to be included
in the Articles of
Incorporation, e.g., authorizing pre-emptive rights; denying
cumulative voting; regulating internal affairs; voting majority
requirements; fixing a duration other than perpetual; etc.
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true.
DATED: August 10, 1992
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Signature and Name |
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Post Office Address |
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1.
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/s/ Julie Espineza
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1. |
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500 Central Avenue
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Julie Espineza
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Albany, N.Y. 12206 |
NOTE: If a
corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by its President or Vice-President and
verified by him, and attested by its Secretary or an Assistant Secretary.
ARTICLES OF INCORPORATION
OF
CONTINENTIAL WAST INDUSTRIES VENTURE, INC.
FILED BY:
Infosearch, Inc. S5293-903215
500 Central Ave.
Albany, NY 12206-2290
FILED
SEP 8 1992
GEORGE H. RYAN
SECRETARY OF STATE
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BCA 10.30
|
|
File # 5694-509-1 |
Submit in Duplicate
Remit payment in Check or Money
order payable to Secretary of
State.
DO NOT SEND CASH !
This Space For Use By
Secretary of state
Date 9/8/92
|
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License Fee
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|
$ |
Filing Fee
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$ |
25.00 |
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Clerk
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JIM EDGAR
Secretary of State
State of Illinois
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PAID
SEP 9, 1992 |
ARTICLES OF AMENDMENT
Pursuant to the provisions of The Business Corporation Act of 1983, the undersigned
corporation hereby adopts these Articles of Amendment to its Articles of Incorporation.
ARTICLE ONE
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The name of the corporation is:
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(Note 1) |
CONTINENTIAL
WAST INDUSTRIES VENTURE, INC.
ARTICLE TWO
The following amendment to the Article of Incorporation was adopted on August 14, 1992 the
manner indicated below
(þ one box only.)
o By a majority of the incorporators, provided no directors were named in the
Articles of Incorporation and no directors have been elected; or by a majority of the board
of directors, in accordance with Section 10.10, the corporation having issued no shares as
of the time of the adoption of this amendment;
(Note 2)
o By a majority of the board of directors, in accordance with Section 10.15, shares
having been issued but shareholder action not being required for the adoption of the
amendment;
(Note 3)
þ By the shareholders, in accordance with Section 10.20 a
resolution of the board of directors having been duly adopted and
submitted to the shareholders. At a meeting of shareholders, not
less than the minimum number of votes required by statute and by
the articles of incorporation were voted in favor of this
amendment;
(Note 4)
o By the shareholders, in accordance with Sections 10.20 and
7.10, a resolution of the board of directors having been duly adopted and submitted to the
shareholders. A consent in writing has been signed by the shareholders having not less than the
minimum number of votes required by statute and by the articles of incorporation. Shareholders who
have not consented in writing have been given notice in accordance with Section 7.10;
(Note 4)
o By the shareholders, in accordance with Sections 10.20 and
7.10, a resolution of the board of directors have been duly
adopted and submitted to the shareholders. A consent in writing
has been signed by all the shareholders entitled to vote on this
amendment.
(Note 4)
(INSERT AMENDMENT)
(Any
article being amended is required to be set forth in its entirety.) (Suggested language
for an amendment to change the corporate name is: RESOLVED, that the Articles of Incorporation be
amended to read as follows:)
CONTINENTAL WASTE INDUSTRIES VENTURE, INC.
(New Name)
EXPEDITED
SEP 08 1992
SECRETARY OF STATE
EXPEDITED
AUG 26 1992
SECRETARY OF STATE
ARTICLE THREE
The manner in which any exchange, reclassification or cancellation of issued shares,
or a reduction of the number of authorized shares of any class below the number of issued
shares of that class, provided for or effected by this amendment, is as follows: (If not
applicable, insert No Change)
N/A
ARTICLE FOUR
(a) The manner in which said amendment effects a change in the
amount of paid-in capital (Paid-in Capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of
these accounts) is as follows: (If not applicable, insert No
change)
N/A
(b) The
amount of paid-in-capital (Paid-in Capital replaces the terms
Stated Capital and Paid-in Surplus and is equal to the total of
these accounts) as changed by this amendment is as follows: (If
not applicable, insert No change)
N/A
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Before Amendment |
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After Amendment |
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Paid-in Capital |
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$ |
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$ |
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(1) The undersigned corporation has caused these articles to be signed by its duly
authorized officers, each of whom affirm, under penalties of perjury, that the facts
stated herein are true.
Dated: August 20,1992
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CONTINENTIAL WAST
INDUSTRIES VENTURE, INC. |
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(Exact name of corporation) |
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attested by: |
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/s/ Kevin Sheehy
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by
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/s/ Michael Drury |
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Signature of Vice President
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Kevin Sheehy
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Michael Drury |
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(2) If amendment is authorized by the incorporators, the incorporators must sign
below.
OR
If amendment is authorized by the directors and there are no officers, then a majority of
the directors or such directors as may be designated by the board, must sign below.
FILED
OCT 7 1992
GEORGE H. RYAN
SECRETARY OF STATE
GEORGE H. RYAN
SECRETARY OF STATE
State of Illinois
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|
BCA 10.30 (Form Rev. Jan. 1986)
|
|
File # 5694-509-1 |
Submit in Duplicate
Remit
payment in Check or Money order, payable to Secretary of
State.
DO NOT SEND CASH !
This Space For Use By
Secretary of State
Date 10/7/92
|
|
|
|
|
License Fee
|
|
$
|
Franchise Tax
|
|
$
|
Filing Fee
|
|
$ |
25.00 |
|
Clerk
Pursuant to the provisions of The Business Corporation Act of 1983, the undersigned
corporation hereby adopts these Articles of Amendment to its Articles of Incorporation.
|
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ARTICLE ONE |
|
The name of the corporation is Continental Waste Industries
Ventures, Inc. |
(Note 1)
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ARTICLE TWO |
|
The following amendment of the Articles of Incorporation was
adopted on September 25, 1992
19
in the manner indicated below.
(þ one box only.) |
|
o |
|
By a majority of the incorporators, provided no directors were named in
the articles of incorporation and no directors have been elected; or by a
majority of the board of directors, in accordance with Section 10.10, the
corporation having issued no shares as of the time of adoption of this
amendment; |
(Note 2)
By a majority of the board of directors, in accordance with Section
10.15, shares having been issued but shareholder action not being required
for the adoption of the amendment;
(Note 3)
|
þ |
|
By
the shareholders, in accordance with Section 10.20, a
resolution of the board of directors having been duly adopted and submitted
to the shareholders. At a meeting of shareholders, not less than the minimum
number of votes required by statute and by the articles of incorporation were
voted in favor of the amendment; |
(Note 4)
|
o |
|
By the shareholders, in accordance with Sections
10.20 and 7.10, a resolution of the board of directors having been
duly adopted and submitted to the shareholders. A consent in writing
has been signed by shareholders having not less than the minimum
number of votes required by statute and by the articles of
incorporation. Shareholders who have not consented in writing have
been given notice in accordance with Section 7.10; |
(Note 4)
|
o |
|
By the shareholders, in accordance with Sections 10.20
and 7.10, a resolution of the board of directors having been duly
adopted and submitted to the shareholders. A consent in writing has
been signed by all the shareholders entitled to vote on this
amendment. |
(Note 4)
(INSERT AMENDMENT)
(Any
article being amended it required to be set forth in its entirety.) (Suggested language for
an amendment to change the corporate name is RESOLVED, that the Articles of Incorporation be
amended to read as follows:)
CONTINENTAL
WASTE INDUSTRIES OF ILLINOIS, INC.
(NEW NAME)
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PAID
OCT 7 1992
|
All changes other than name, include on page 2
(over) |
EXPEDITED
OCT 07 1992
SECRETARY OF STATE
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|
ARTICLE THREE |
|
The manner in which any exchange, reclassification or
cancellation of issued shares or a reduction of the number of authorized shares of any class below the number
of issued shares of that class provided for or elected by this
amendment, is as follows
(if not applicable, insert NO change)
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NO CHANGE |
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ARTICLE FOUR |
|
(a) The manner in which said amendment effects a change in the amount of
paid-in capital (Paid in capital replaces the terms Stated Capital and Paid-in Surplus
and is equal to the total of these accounts) is as follows (it not applicable, insert
No change)
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NO CHANGE |
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(b) The amount of paid-in capital (Paid-in Capital replaces the terms
Stated Capital and Paid-in surplus and is
equal to the total of these accounts) as changed by this amendment is as
follows: (if not applicable insert No change) |
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NO CHANGE |
EXPEDITED
OCT 05 1992
SECRETARY OF STATE
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Before Amendment |
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After Amendment |
|
Paid-in Capital |
|
$ |
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$ |
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(Complete
either item 1 or 2 below)
(1) The undersigned corporation has caused these articles to be signed by its duly
authorized officers, each of whom affirm, under penalties of perjury,
that the facts stated
herein are true.
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Dated
September 25, 1992 |
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Continental Waste Industries Venture, Inc. |
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(Exact
Name of Corporation) |
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attested by:
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/s/ T. Kevin Sheehy
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by:
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/s/ Michael Drury |
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(Signature of Secretary
or Assistant Secretary)
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(Signature of President or Vice President)
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T. Kevin Sheehy
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Michael Drury, V.P. |
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[ILLEGIBLE]
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(Type
of Print Name and Title) |
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(2) If amendment is authorized by the incorporators, the incorporators must sign below.
OR
If amendment is authorized by the directors and there are no officers, then a majority of the
directors or such directors as may be designated by the board, must sign below.
The undersigned affirms, under penalties of perjury, that the facts stated herein are true.
Form BCA-10.30
(Rev Jan. 1991)
George H. Ryan
Secretary of State
Department of Business Services
Springfield IL 62756
Telephone (217) 782-6961
Remit payment in check or money
order, payable to Secretary of State.
ARTICLES
OF AMENDMENT
FILED
FEB 23 1993
GEORGE H. RYAN
SECRETARY OF STATE
File
5694-509-1
SUBMIT IN DUPLICATE
This space for use of
Secretary of State
Date [ILLEGIBLE]
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Franchise Tax |
|
$ |
|
|
Filing Fee |
|
$ |
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|
Penalty |
|
$ |
|
|
Approved: [ILLEGIBLE]
1. |
|
CORPORATE NAME: Continental Waste Industries of Illinois, Inc. |
(Note 1)
The
following amendment of the Articles of Incorporation was adopted on February 22,
1993 in the manner indicated below.
(þ one box only)
|
o |
|
By a majority of the incorporators, provided no directors were named in
the articles of incorporation and no directors have been elected; or by a majority
of the board of directors, in accordance with Section 10.10, the corporation having
issued no shares as of the time of adoption of this amendment; |
(Note 2)
|
o |
|
By a majority of the board of directors, in accordance with
Section 10.15, shares having been issued by shareholder action not being required for the adoption
of the amendment; |
(Note 3)
|
o |
|
By the shareholders, in accordance with Section 10.20, a resolution of the
board of directors having been duly adopted and submitted to the shareholders. At a
meeting of shareholders, not less than the minimum number of votes required by
statute and by the articles of incorporation were voted in favor of the amendment; |
(Note 4)
|
o |
|
By the shareholders, in accordance with Section 10.20
and 7.10 a resolution of the board of directors having been duly
adopted and submitted to the shareholders. A consent in writing has been signed by shareholders
having not less than the minimum
number of votes required by statute and by the articles of incorporation. Shareholders
who have not consented in writing have
been given notice in accordance with Section 7.10; |
(Note 4)
|
þ |
|
By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the
board of directors having been duly adopted
and submitted to the shareholders. A consent in writing has been signed by all the
shareholders entitled to vote on this
amendment. |
(Note 4)
(INSERT AMENDMENT)
(Any article being amended is required to be set forth in its entirety.) (Suggested
language for an amendment to change the corporate name is RESOLVED, that the Articles of
incorporation be amended to read as follows:)
CWI of Illinois, Inc. MH
(NEW NAME)
|
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PAID
FEB 23 1993
|
All changes other than name, include on page 2
(over) |
EXPEDITED
FEB 23 1993
SECRETARY OF STATE
|
NO
CHANGE
4. |
|
(a) The manner in which said amendment effects a change in
the amount of paid-in capital (Paid-in capital replaces the terms
Stated Capital and Pain-in Surplus and is equal to the total of these
accounts) is as follows: (If not applicable, insert No change) |
NO CHANGE
(b) The amount of paid-in-capital (Paid-in Capital replaces the terms Stated
Capital and Paid-in Surplus and is equal to the total of these accounts) as
changed by this amendment is as follows: (If not applicable, insert No change)
NO
CHANGE
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Before Amendment |
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Paid-in Capital |
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(Complete either Item 5 or 6 below)
5. |
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The undersigned corporation has caused this statement to be
signed by its duly authorized officers, each of whom affirms, under penalties of perjury, that the
facts stated herein are true. |
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Dated February 22, 1993 |
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Continental Waste
Industries of Illinois, Inc. |
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(Exact
Name of Corporation) |
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attested by
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/s/ [ILLEGIBLE]
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by
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/s/ Michael Drury |
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(Signature of Secretary
or Assistant Secretary)
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(Signature of President or
Vice President) |
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[ILLEGIBLE]
Assistant Secretary
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Michael Drury,
Vice President |
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(Type or Print Name and
Title)
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(Type or Print Name and
Title) |
6. |
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If amendment is authorized by the incorporators, the incorporators must sign below. |
OR
If amendment is authorized by the directors and there are no officers, then a majority
of the directors or such directors as may be designated by the board, must sign below.
The undersigned affirms, under the penalties of perjury, that the facts stated herein
are true.
exv3w424
Exhibit 3.424
AMENDED AND RESTATED BYLAWS
OF
CWI OF ILLINOIS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten (10) (unless a longer period is required by law) nor more
than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
5
or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable
state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w425
Exhibit 3.425
ARTICLES OF INCORPORATION
OF
TUTOR JR. REFUSE SERVICE. INC.
The undersigned natural person of the age of eighteen (18) years or more does hereby
adopt the following articles of incorporation for the purpose of forming a corporation under the
General and Business Corporation Act.
ARTICLE I
The name of the corporation is: TUTOR JR. REFUSE SERVICE, INC.
ARTICLE II
The initial registered office of the corporation in the State of Missouri shall be
located at 756 N 6th Street, Ste. Genevieve, Missouri 63670.
The name of the initial registered agent of the corporation at such address shall be NORMA
GRASS.
ARTICLE III
The aggregate number of shares which this corporation shall have authority to issue shall
be 30,000 shares, all of which shall be common stock having a par value of One Dollar ($1.00) per
share.
ARTICLE IV
The preemptive rights of shareholders to purchase additional shares of the corporations
authorized capital common stock shall not be limited or denied.
ARTICLE V
The name of the incorporator is as follows: Frank J. Elpers, 296 Market Street, Ste.
Genevieve, MO 63670.
ARTICLE VI
The initial Board of Directors of the corporation shall consist of 2 persons. The number
of directors to constitute subsequent boards of directors shall be fixed by, or in the manner
provided in, the by-laws of the corporation. Any changes in the number of members of the Board
shall be reported to the Secretary
of State within thirty (30) calendar days of such change.
ARTICLE VII
The corporation shall have perpetual existence.
[ILLEGIBLE]
[ILLEGIBLE]
OCT 11 1989
[ILLEGIBLE]
ARTICLE VIII
The purposes for which this corporation is formed are as follows:
A. To operate a refuse pick-up service;
B. To the same extent as natural persons could do, to acquire, construct, maintain,
develop, improve, rent, use, mortgage and dispose of real property and interests;
C. To act as agent or representative, in any capacity; and to perform services for
others;
D. To acquire, develop, own and dispose of rights, privileges, permits and
franchises, convenient for any of the purposes of its business;
E. To acquire, own, pledge, dispose of and deal in shares of capital stock, rights,
bonds, debentures, notes, trust receipts and other securities, obligations, choses in
action and evidences of indebtedness or interest issued or created by any corporations,
associations, firms, trusts or persons, public or private, or by the government of the
United States of America or by any foreign government or by any state, territory,
province, municipality or other political subdivision or by any governmental agency,
domestic or foreign, and as owner thereof to possess and exercise all the rights, powers
and privileges of ownership, including the right to execute consents and vote thereon and
to do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof;
F. To aid in any manner any corporation, association, firm or individual, any of whose
securities, evidences of indebtedness, obligations or stock are held by the corporation
directly or indirectly, or in which, or in the welfare of which, the corporation shall
have any interest, and to guarantee securities, evidences of indebtedness and obligations
of other persons, firms, associations and corporations;
G. To acquire, and pay for in cash, stock, bonds or other securities of the corporation or
otherwise, the goodwill, rights, assets and property and to undertake and assume the whole or any
part of the obligations or liabilities of any person, firm,
2
association or corporation;
H. To borrow moneys and, from time to time without limit as to amount, to issue, accept,
endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures and
other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the
payment of any thereof and of the interest thereon by mortgage upon or pledge, conveyance or
assignment in trust of the whole or any part of the property of the corporation, whether at the
time owned or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds or other
obligations of the corporation for its corporate purposes;
I. To lend any of its funds, either with or without security;
J. To acquire, hold and dispose of shares of its own capital stock and rights thereto;
K. To carry on any other lawful business for which a corporation may be organized under the
General Corporation Law of Missouri;
L. To do all such things as are necessary and incidental to the attainment of the above stated
purposes;
M. To have and exercise all the powers conferred by the laws of the State of Missouri upon
corporations formed under the laws of such State;
N. The purposes specified in the foregoing clauses shall, except as otherwise expressed, be in
nowise limited or restricted by reference to, or inference from, the terms of any other clause in
this certificate of incorporation, but the purposes specified in each of the foregoing clauses of
this article shall be regarded as independent purposes.
ARTICLE IX
No contract or other transaction between this corporation and any other firm or
corporation shall be affected or invalidated by reason of the fact that any of the directors or
officers of this corporation are interested in or are members, shareholders, directors or officers
of such other firm or corporation and any director or officer of this corporation may be a party to
or may
3
be interested in any contract or transaction of this corporation or in which this corporation is
interested and no such contract shall be affected or invalidated thereby and each and every person
who may become a director or officer of this corporation is hereby relieved from any liability that
might otherwise exist, from his contract and with this corporation for the benefit of himself or
any person, firm, association or corporation in which he may be in anywise, interested.
ARTICLE X
The above stated objects and purposes shall be construed also as powers, but such
enumeration of specific powers shall not be held to limit or restrict in any manner the powers of
the corporation now or hereafter granted to it by law. Only the business for which a corporation
may be formed under the laws of the State of Missouri may be conducted by the Corporation.
IN WITNESS WHEREOF, I have executed these articles of incorporation this 10th day
of October, 1989.
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/s/ Frank J. Elpers
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FRANK J. ELPERS |
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STATE OF MISSOURI
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) |
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SS. |
COUNTY OF STE, GENEVIEVE
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I,
Jean M. Schweigert a notary public, do hereby certify that on this 10th
day of October, 1989, personally appeared before me, Frank J. Elpers, who being by me
first duly sworn, declared that he is the person who signed the foregoing document as incorporator,
and that the statements therein contained are true.
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/s/ Jean M. Schweigert
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Notary Public |
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My Commission expires:
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JEAN M. SCHWEIGERT, NOTARY PUBLIC |
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STE GENEVIEVE COUNTY, STATE OF MISSOURI |
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MY COMMISSION EXPIRES 10/18/91 |
[ILLEGIBLE]
[ILLEGIBLE]
OCT 11 1989
[ILLEGIBLE]
4
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State of Missouri
Judith K. Moriarty, Secretary of State
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Corporation Division |
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Amendment of Articles of Incorporation
(To be submitted in duplicate)
Pursuant to the provisions of The General and Business Corporation Law of Missouri, the
undersigned Corporation certifies the following:
1. |
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The present name of the Corporation is Tutor Jr. Refuse Service, Inc. |
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The name under which it was originally organized was Tutor Jr. Refuse Service, Inc. |
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2. |
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An amendment to the Corporations Articles of Incorporation
was adopted by the shareholders on April 21, 1994. |
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3. |
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Article Number I is amended to read as follows: |
The name of the corporation is: CWI of Missouri, Inc.
(If
more than one article is to be amended or more space is needed attach
fly sheet.)
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Of the 30,000 shares outstanding, 30,000
of such shares were entitled to vote on such amendment. |
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The number of outstanding shares of any class entitled to vote thereon as a class were as follows: |
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Class |
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Number of Outstanding Shares |
Common
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30,000 |
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5. |
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The number of shares voted for and against the amendment was as follows: |
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Class |
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No. Voted For |
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No. Voted Against |
Common
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30,000
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-0- |
6. |
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If the amendment changed the number or par value of
authorized shares having a par value, the amount in dollars
of authorized shares having a par value as changed is: N/A |
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If the amendment changed the number of authorized shares
without par value, the authorized number of shares without
par value as changed and the consideration proposed to be
received for such increased authorized shares without par
value as are to be presently issued are: N/A |
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7. |
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If the amendment provides for an exchange,
reclassification, or cancellation of issued shares, or a
reduction of the number of authorized shares of any class
below the number of issued shares of that class, the
following is a statement of the manner in which such
reduction shall be effected. N/A |
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IN WITNESS WHEREOF, the undersigned,
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Carlos E. Aguero |
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President or |
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has executed this instrument and its |
Vice President |
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T. Kevin Sheehy |
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, has affixed its corporate seal hereto and |
Secretary or Assistant Secretary |
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attested said seal on the 22 day of April, 1994.
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Place |
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CORPORATE SEAL |
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Here |
None |
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(If no seal, state None)
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Tutor Jr. Refuse Service, Inc. |
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Name of Corporation |
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ATTEST: |
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/s/ T. Kevin Sheehy
Secretary of Assistant Secretary
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By:
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/s/ Carlos E. Aguero
President or Vice President
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FILED AND CERTIFICATE
ISSUED
APR 26 1994
/s/ Judith K. Mariarty
[ILLEGIBLE] |
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State of New Jersey |
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} |
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ss. |
County of Union |
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I, Victoria D. Halloran, a Notary Public do hereby certify that
on this 21st day of April 1994, personally appeared before
me Carlos E. Aguero who, being by me first duly sworn, declared that he is the
President of Tutor Jr. Refuse Service, Inc. that he signed the foregoing
documents as President of the corporation, and that the statements therein contained are true.
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(Notarial Seal)
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/s/ Victoria D. Halloran |
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Notary Public |
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My commission expires April 23, 1996 |
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VICTORIA D. HALLORAN |
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NOTARY PUBLIC OF NEW JERSEY |
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My Commission Expires April 23, 1996 |
exv3w426
Exhibit 3.426
AMENDED AND RESTATED BYLAWS
OF
CWI OF MISSOURI, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
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or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made
to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w427
Exhibit 3.427
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 04/04/1996 |
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960099184 2610854 |
CERTIFICATE OF FORMATION
OF
D & L DISPOSAL L.L.C.
A LIMITED LIABILITY COMPANY
FIRST: The name of the limited liability company is:
D & L Disposal L.L.C.
SECOND: The address of the limited liability companys registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THE UNDERSIGNED, being the individual forming the limited liability company, has executed,
signed and acknowledged this Certificate of Formation this 4th day of April, 1996.
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/s/ Blaine A. Lamperski
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Blaine A. Lamperski |
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exv3w428
Exhibit 3.428
AMENDED AND RESTATED
OPERATING AGREEMENT OF
D&L DISPOSAL, L.L.C.
This Amended and Restated Operating Agreement (the Agreement) is executed as of
November 4, 1998, by Liberty Waste Services of Illinois, L.L.C., an Illinois limited
liability company (the Member), as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is D&L Disposal, L.L.C.
(the Company). The name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware upon the consent
of the Member. The Company may maintain a registered office in any state within which it does
business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall file any amendments to the
Certificate of Formation deemed necessary by it to reflect the provisions of this Agreement or any
amendments to this Agreement adopted by the Member in accordance with the terms hereof. Upon the
approval of the Certificate of Formation, or any amendments thereto, by the Member in accordance
with this Agreement, the Member or a designee of a Member shall be authorized to execute and file
such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name of the sole Member is set forth in the heading of this Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member, in its sole discretion, may make loans (Member Loans)
to the Company, which shall bear interest and be repaid on such reasonable terms and conditions as
may be approved by the Member.
2
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
Unless otherwise required by the Code, all Profits, Losses and items thereof for each fiscal
year of the Company shall be allocated to the Member in full, disregarding the Company as a
separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
3
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, a
4
certificate of cancellation shall be executed and filed by the Member with the Delaware Secretary
of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.5 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any
corresponding provisions of succeeding law).
Agreement means this Amended and Restated Operating Agreement, as amended from time
to time. Words such as herein, hereinafter, hereof, hereto and hereunder, refer to this
Agreement as a whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.2 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company governed by this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement, or
any other Person admitted as a Member pursuant to the terms of this Agreement. Member refers
collectively to all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Liberty Waste Services of Illinois, L.L.C., |
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an Illinois limited liability company |
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By:
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/s/ D. W. Slagar
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Its:
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Executive Vice President |
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6
exv3w429
Exhibit 3.429
FILED
AUG 30 1999
SECRETARY OF STATE
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION OF
DALLAS DISPOSAL CO.
1. The name of the corporation is Dallas Disposal Co.
2. The amendments adopted to the articles of incorporation are as follows, to add the
following articles to the articles of incorporation:
ARTICLE VII. ELIMINATION OF LIABILITY
A. To the fullest extent permitted by law, no director of the corporation shall be
personally liable to the corporation or its shareholders for monetary damages for conduct as
a director, except that this provision shall not eliminate or limit the liability of a
director for any of the following:
1. Any act or omission occurring before the date this provision becomes
effective;
2. Any breach of the directors duty of loyalty to the corporation or its
shareholders;
3. Acts or omissions not in good faith or that involve intentional misconduct or
a knowing violation of law;
4. Any distribution to shareholders that is unlawful under the Oregon Business
Corporation Act or successor statute; or
5. Any transaction from which the director derived an improper personal benefit
B. Without limiting the generality of the foregoing, if the provisions of applicable
law are further amended at any time, and from time to time, to authorize corporate action
further eliminating the personal liability of directors and officers of the corporation, the
liability of directors and officers of the corporation shall be eliminated or limited to the
fullest extent permitted by applicable law, as so amended.
C. No amendment to or repeal of this Article VII, or adoption of any provision of these
Articles of Incorporation inconsistent with this Article VII, or a change in the law, shall
adversely affect any elimination or limitation of liability, or other right or protection,
that is based upon this Article VII and
pertains to any act, conduct, omission, or circumstance that occurred or existed before the
amendment, repeal, adoption, or change. No change in the law shall reduce or eliminate the
rights and protections set forth in this Article VII unless the change in law specifically
requires the reduction or elimination. No amendment to or repeal of this Article VII shall
apply to or have any effect on the liability or alleged liability of any director or officer
of the corporation for or with respect to any acts or omissions before the amendment or
repeal.
ARTICLE VIII. INDEMNIFICATION
D. The corporation shall indemnify, to the fullest extent permitted by law, any person
who is made or threatened to be made a party to, witness in, or otherwise involved in, any
action, suit, or proceeding, whether civil, criminal, administrative, investigative, or
otherwise (including any action, suit, or proceeding by or in the
right of the corporation)
by reason of the fact that the person is or was a director or officer of the corporation or
any of its subsidiaries, or a fiduciary within the meaning of the Employee Retirement Income
Security Act of 1974 with respect to any employee benefit plan of the corporation or any of
its subsidiaries, or served or serves at the request of the corporation as a director or
officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership,
joint venture, trust, or other enterprise. Any indemnification provided pursuant to this
Article VIII shall not be exclusive of any rights to which the person indemnified may
otherwise be entitled under any provision of these Articles of Incorporation, the Bylaws,
agreement, statute, policy of insurance, or otherwise.
E. Indemnification provided under this Article VIII shall continue to cover any director
or officer after the person ceases to serve in that capacity and shall enure to the benefit of
the persons heirs, personal representatives, and administrators.
F. The right to indemnification conferred by this Article VIII shall be considered a
contract right between the corporation and the person entitled to indemnity under this Article
VIII.
G. In addition to any rights set forth above in this Article VIII, the corporation shall
advance all reasonable expenses incurred by a director or officer who on behalf of the
corporation is party to a proceeding, in advance of the proceeding to the fullest extent
required or authorized under the law.
3. The date each amendment was adopted is August 18, 1999.
Page 2 ARTICLES OF AMENDMENT
4. The amendments were approved by the shareholders. One thousand shares of the corporation
are outstanding, 1,000 votes are entitled to be cast on the amendments, 1,000 votes were cast for
the amendments, and no votes were cast against the amendments.
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Dallas Disposal Co. |
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By
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/s/ Gary A. Barton
Gary A. Barton, Vice President
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Page 3 ARTICLES OF AMENDMENT
FILED
JAN 31 1995
SECRETARY OF STATE
Submit the original
and one true copy
$10.00
Corporation Division Business Registry
Public Service Building
255 Capitol St., NE Ste. 151
Salem, OR 97310-1327
(503) 986-2200 Facsimile (503) 378-4381
REGISTRY NUMBER
121935-12
ARTICLES OF AMENDMENT
Business Corporation
1: |
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Name of the corporation prior to amendment: Dallas Garbage Disposal Co. |
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State the article number(s) and set forth the article(s) as it is amended
to read or attach a separate sheet. |
ARTICLE I
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The name of the corporation is Dallas Disposal Co. |
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3. |
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The amendment(s) was adopted on January 3, 1995. |
(If more than one amendment was adopted, identify the date of adoption of each amendment.)
4. |
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Check the appropriate statement: |
þ Shareholder action was required to adopt the amendment(s). The vote was as follows:
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Class or series of shares |
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Common |
No. of shares outstanding |
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1000 |
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No. of votes entitled to be cast |
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1000 |
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No. of votes cast for |
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1000 |
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No. of votes cast against |
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-0- |
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o Shareholder action was not required to adopt the amendment(s). The amendment(s) was adopted by
the board of directors without shareholder action.
o The corporation has not issued any shares of stock. Shareholder action was not required to
adopt the amendment(s). The amendment(s) was adopted by the incorporators or by the board of
directors.
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/s/ John Condon
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John Condon
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President |
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SIGNATURE
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PRINTED NAME
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TITLE |
Person to contact about this filing:
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Lane P. Shetterly
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(503) 623-6695 |
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NAME
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DAYTIME PHONE |
MAKE CHECKS PAYABLE TO THE CORPORATION DIVISION. SUBMIT THE COMPLETED FORM AND FEE TO THE ABOVE
ADDRESS OR INCLUDE YOUR VISA OR MASTERCARD NUMBER AND EXPIRATION DATE - - -
/ AND FAX.
112 (2/94)
FILE
NO. 121935
FILED
IN THE OFFICE OF THE CORPORATION
COMMISSIONER OF THE STATE OF OREGON
JUL 1 1977
FRANK J. HEALY
CORPORATION COMMISSIONER
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12a-B |
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Articles of Amendment For Gain |
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3-74 |
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By Directors
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Submit in duplicate |
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Articles of Amendment
By Directors
Of
KELMAN GARBAGE DISPOSAL COMPANY
Pursuant to the provisions of ORS 57.360 (2) (a), the undersigned, being the president or
vice-president and secretary or assistant secretary or a majority of the directors of the
corporation hereinafter named, adopt the following Articles of Amendment:
1. The name of the corporation is Kelman Garbage Disposal Company
2. The corporation has not issued any shares of stock.
3. The following amendment of the Articles of Incorporation was adopted by a majority of the
directors on June 30, 1977.
(The article or articles being amended should be set forth in full as they will be amended to read.)
Article I. The name of this corporation is Dallas Garbage
Disposal Co. and its duration shall be perpetual.
We, the undersigned, declare under the penalties of perjury that we have examined the
foregoing and to the best of our knowledge and belief it is true, correct and complete.
(Choose one of the two following forms of execution)
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(1)
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and |
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President
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Secretary |
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OR |
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(2)
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/s/ Lee Davis Kell |
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Lee Davis Kell
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Director
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Director |
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Director
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Director |
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Director
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Director |
Dated
June 30, 1977.
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No. 11-B
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Submit in duplicate |
2-75
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Include License and Filing Fees** |
One or more natural persons of the age of 18 years or more may Incorporate a business
corporation by signing, verifying and delivering Articles of Incorporation in duplicate to the
Corporation Commissioner. The procedure for the formation of business corporations is set forth in
ORS 57.306 through 57.331. See ORS 57.311 for the content of Articles of Incorporation.
FILE NO. 121935
FILED
IN THE OFFICE OF THE CORPORATION
COMMISSIONER OF THE STATE OF OREGON
JUN 20 1977
FRANK J. HEALY
CORPORATION COMMISSIONER
Articles of Incorporation
The undersigned natural person(s) of the age of eighteen
years or more, acting as incorporators [ILLEGIBLE] under the Oregon
Business Corporation Act, adopt the following Articles of Incorporation
ARTICLE
I The name of this corporation is Kelman Garbage Disposal Company
(The corporate name must contain the word Corporation, Company, Incorporated or Limited or
an abbreviation of one of such words.)
and its duration shall be Perpetual
ARTICLE II The purpose or purposes for which the corporation is organized are:
Solid waste collection and disposal and any other lawful activity for which
corporations may be organized under ORS Chapter 57.
(It is not necessary to set forth in the Articles any of the corporate powers enumerated in ORS
57.030 and 57.035. It is sufficient to state, either alone or with other purposes, That the
corporation may engage in any lawful activity for which corporations may be organized under ORS
Chapter 57; however, it is desirable to state the primary purpose of the corporation in
conjunction with such statement.)
ARTICLE III The aggregate number of shares which the corporation shall have authority to issue is
5,000 shares $1.00 par value
(Insert statement as to par value of such shares or a statement that all of such shares are to be
without par value. If there is more than one class of stock, Insert a statement as to the
preference, limitations and relative rights of each class.)
ARTICLE IV The address of the initial registered office of the corporation is 1330 The Bank of
California Tower, Portland, Oregon 97205
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(Street and Number)
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(NOTEA P.O. Box No.
is not acceptable)
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(City and State)
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(Zip Code) |
and the name of its initial registered agent at such address is Lee Davis Kell
ARTICLE V The number of directors constituting the initial board of directors of the corporation is
one, and the names and addresses of the persons who are to serve as directors until the first
annual meeting of shareholders or until their successors are elected and shall qualify are:
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Name |
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Address |
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(NOTE: A P O BOX NUMBER IS NOT ACCEPTABLE)
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(Street and Number)
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(City and State)
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Lee Davis Kell |
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1330 The Bank of California Tower
Portland, Oregon 97205 |
ARTICLE VI The name and address of each Incorporator is:
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Name |
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Address |
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(NOTE: A P O BOX NUMBER IS NOT ACCEPTABLE)
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(Street and Number)
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(City and State)
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(Zip) |
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Lee Davis Kell |
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1330 The Bank of California Tower
Portland, Oregon 97205 |
ARTICLE VII (Provisions for regulation of internal affairs of the corporation as may be
appropriate.)
We, the undersigned incorporators, declare under penalties of perjury that we have examined
the foregoing and to the best of our knowledge and belief, it is true correct, and complete.
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/s/ Lee Davis Kell
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Lee Davis Kell |
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Dated June 17, 1977.
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** |
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Submit articles in duplicate original with filing and license fees as listed below.
Duplicate original means both copies MUST have original signatures. |
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If authorized |
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Filling |
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Total |
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shares exceed |
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exceed |
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Fee |
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Fee |
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$ |
0 |
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$ |
5,000 |
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10 |
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10 |
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20 |
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5,000 |
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10.000 |
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15 |
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15 |
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30 |
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10,000 |
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25,000 |
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20 |
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|
20 |
|
|
|
40 |
|
|
|
|
25,000 |
|
|
|
50,000 |
|
|
|
30 |
|
|
|
30 |
|
|
|
80 |
|
|
|
|
50,000 |
|
|
|
100,000 |
|
|
|
50 |
|
|
|
50 |
|
|
|
100 |
|
|
|
|
100,000 |
|
|
|
250,000 |
|
|
|
75 |
|
|
|
75 |
|
|
|
150 |
|
|
|
|
250,000 |
|
|
|
500.000 |
|
|
|
100 |
|
|
|
100 |
|
|
|
200 |
|
|
|
|
500,000 |
|
|
|
1,000,000 |
|
|
|
125 |
|
|
|
125 |
|
|
|
250 |
|
If the authorized shares exceed $1,000,000, a $200 license fee and a $200 filing feetotaling $400.
To determine the amount of organization fee payable by a corporation having stock without par
value, but for no other purpose, such shares of stock shall be deemed equivalent to shares
having a par value of $10 each.
File with Corporation Commissioner, Commerce Building, 158 1211 Street N.E., Salem, Oregon
97310.
exv3w430
Exhibit
3.430
AMENDED AND RESTATED BYLAWS
OF
DALLAS DISPOSAL CO.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law
or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten
(10) (unless a longer period is required by law) nor more than sixty (60) days (unless a
longer period is required by law) before the date of the meeting to each stockholder entitled to
vote at such meeting. Business transacted at all Special Meetings shall be confined to the objects
stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall
be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of
Directors. The Corporations Secretary shall act as secretary of each meeting of the stockholders;
in the Secretarys absence, the chairman of the meeting may appoint any person (whether a
stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his
part, and subject to any state law restrictions or requirements, the chairman of a meeting shall,
among other things, have absolute authority to fix the period of time allowed for the registration
of stockholders and the filing of proxies, to determine the order of business to be conducted at
such meeting and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority
of the directors then in office. A director shall hold office until the next Annual Meeting
and until his
3
successor shall be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Directors of the Corporation may be removed
from the Board of Directors, with or without cause, subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the
5
disinterested directors, even though the disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if
6
present. The Board of Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of
the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision
7
he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there is no
Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there is one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as
8
shall be satisfactory to the Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property of whatever kind
in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
9
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
11
with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person (a) did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, (b) with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section
12
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall
13
not be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses.
The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w431
Exhibit 3.431
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ENDORSED |
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FILED |
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In the office of the Secretary of State |
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of the State [ILLEGIBLE] |
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SEP 2 1971 |
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EDMUND G. LROWN Jr., Secretary of State |
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By F. COLBY VOGEL |
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Deputy |
ARTICLES OF INCORPORATION
OF
DELTA CONTAINER CORPORATION
For the purposes of forming this Corporation under the laws of the State of California, the
undersigned incorporators hereby state:
ARTICLE FIRST
Name
The name of the Corporation is: DELTA CONTAINER CORPORATION
ARTICLE SECOND
Purposes
The Corporations purposes are:
(a) Primarily to engage in the specific business
of operating an industrial refuse service;
(b) To engage in any business related or unrelated to that described in clause (a) of this
Article Second and from time to time authorized or approved by the Board of Directors of this
corporation;
(c) To act as partner or joint venturer or in any other legal capacity in any transaction;
(d) To do business anywhere in the world; and
(e) To have and exercise all rights and powers from time to time granted to a corporation by law.
1 .
The above purpose clauses shall not be limited by reference to or inference from one another,
but each purpose clause shall be construed as a separate statement conferring independent purposes
and powers upon the Corporation.
ARTICLE THIRD
Location
The county in the State of California where the principal office for the transaction of the
business of the Corporation is located is the County of San Joaquin.
ARTICLE FOURTH
Directors
(a) The number of Directors of the Corporation is three (3) until changed by amendment of
these Articles of Incorporation or by a By-Law duly adopted by the shareholders of the Corporation.
(b) The names and addresses of the persons who are appointed to act as first Directors are:
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1. Lawrence A. Aufmuth
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525 University Avenue |
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Palo Alto, California |
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2. Patrick J. McGaraghan
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525 University Avenue |
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Palo Alto, California |
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3. Paul E. Kreutz
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525 University Avenue |
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Palo Alto, California |
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ARTICLE FIFTH
COMPLEX STOCK STRUCTURE
The Corporation is authorized to issue two classes of shares to be designated respectively
preferred and common. The total number of shares which the corporation is authorized to issue
is seven thousand five hundred (7,500) shares. The aggregate par value of all shares that are to
have a par value is SEVENTY-FIVE THOUSAND DOLLARS ($75,000.000). The number of preferred shares
authorized is five thousand (5,000) shares, and the par value of each such shares is TEN DOLLARS
($10.00). The number of common shares authorized is two thousand five hundred (2,500) shares, and
the par value of each such share is TEN DOLLARS ($10.00).
The preferred shares authorized by these Articles of Incorporation may be issued from time to
time in one or more series. The Board of Directors is hereby authorized to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption,
including sinking fund provisions, the redemption price or prices, and the liquidation preferences
of any wholly unissued class or series of preferred shares, and the number of shares constituting
any such series and the designation thereof, or any of them.
The Board of Directors is further authorized to increase or decrease the number of shares
of any series, the number of which was fixed by it, subsequent to the issue of
3 .
shares of that series, but not below the number of shares of such series then outstanding,
subject to the limitations and restrictions stated in the resolution of the Board of Directors
originally fixing the number of shares of such series. In case the number of shares of any series
shall be so decreased, the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares of such series.
IN WITNESS WHEREOF, the undersigned incorporators, who are also the first Directors of this
Corporation, have executed these Articles of Incorporation on August 13, 1971.
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/s/ Lawrence A. Aufmuth
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Lawrence A. Aufmuth |
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/s/ Patrick J. McGaraghan
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Patrick J. McGaraghan |
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/s/ Paul E. Kreutz
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Paul E. Kreutz |
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4 .
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STATE OF CALIFORNIA
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) |
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ss. |
CITY AND COUNTY OF SANTA CLARA
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On this 13th day of August, 1971, before me,
Judith A. Gaffke, a Notary Public in and for the said County and State, residing therein, duly
commissioned and sworn, personally appeared Lawrence A. Aufmuth, Patrick J. McGaraghan and Paul E.
Kreutz, known to me to be the persons whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
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/s/ Judith A. Gaffke |
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Notary Public |
5 .
exv3w432
Exhibit 3.432
BY-LAWS
OF
DELTA CONTAINER CORPORATION
ARTICLE I
OFFICES
Section 1.1 Principal Executive Office.
The principal executive office for the transaction of the business of the corporation is
hereby fixed and located at 401 South Lincoln Street, City of Stockton, County of San Joaquin,
State of California. The Board of Directors is hereby granted full power and authority to change
said principal office from one location to another.
Section 1.2 Other Offices.
Branch or subordinate offices may at any time be established by the Board of Directors at any
place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 Place of
Meetings.
All meetings of shareholders shall be held either at the principal executive office or at any
other place within or without the State of California which may be designated either by the Board
of Directors or by the written consent of a majority of the shareholders entitled to vote thereat
as determined pursuant to Section 6.1 of these By-Laws given either before or after the meeting.
Section 2.2 Annual Meetings.
The annual meetings of shareholders shall be held on such day and at such hour as may be fixed
by the Board of Directors. At such meeting, Directors shall be elected, and any other proper
business may be transacted.
Section 2.3 Special Meetings.
Special meetings of the shareholders may be called at any time by the Board of Directors, the
Chairman of the Board, the President, or by the holders of shares entitled to
1 .
cast not less than ten percent (10%) of the votes at the meeting. Notice of such special
meeting shall be given in the same manner as for the annual meeting of shareholders. Notices of any
special meetings shall specify in addition to the place, date and hour of such meeting, the general
nature of the business to be transacted thereat.
Section 2.4 Notice of Meetings or Reports.
Written notice of each meeting of shareholders shall be given not less than ten (10) days nor
more than sixty (60) days before the date of the meeting to each shareholder entitled to vote
thereat. Such notice shall be given either personally or by mail or other means of written
communication, addressed or delivered to each shareholder entitled to vote at such meeting at the
address of such shareholder appearing on the books of the corporation or given by him to the
corporation for the purpose of such notice. If no such address appears or is given, notice shall be
given either personally or by mail or other means of written communication addressed to the
shareholder at the place where the principal executive office of the corporation is located, or by
publication at least once in a newspaper of general circulation in the county in which said office
is located. The notice shall be deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication.
The same procedure for the giving of notice shall apply to the giving of any report to
shareholders.
All such notices shall state the place, the date and the hour of such meeting, and shall state
such matters, if any, as may be expressly required by the California Corporations Code.
Upon request by any person or persons entitled to call a special meeting, the Chairman of the
Board, President, Vice President or Secretary shall within twenty (20) days after receipt of the
request cause notice to be given to the shareholders entitled to vote that a special meeting will
be held at a time requested by the person or persons calling the meeting, but not less than
thirty-five (35) nor more than sixty (60) days after receipt of the request.
All other notices shall be sent by the Secretary or an Assistant Secretary, or if there be no
such officer, or in the case of his neglect or refusal to act, by any other officer, or by persons
calling the meeting.
2 .
Section 2.5 Adjourned Meetings and Notice Thereof.
Any shareholders meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares, represented either in person
or by proxy, but in the absence of a quorum, no other business may be transacted at such meeting,
except as provided in Section 2.7 of these By-Laws.
When a shareholders meeting is adjourned to another time or place, notice of the adjourned
meeting need not be given if the time and place thereof are announced at the meeting at which the
adjournment is taken; except that if the adjournment is for more than forty-five (45) days or if
after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote thereat.
At the adjourned meeting, the corporation may transact any business which might have been
transacted at the original meeting.
Section 2.6 Voting.
Except as otherwise provided in the Articles of Incorporation and subject to Section 6.1 of
these By-Laws, each outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote of shareholders. Vote may be viva voce or by ballot; provided, however,
that elections for directors must be by ballot upon demand made by a shareholder at the meeting and
before the voting begins.
Every shareholder entitled to vote at any election for Directors may cumulate his votes and
give one candidate a number of votes equal to the number of directors to be elected, multiplied by
the number of votes to which his shares are entitled, or to distribute his votes on the same
principle among as many candidates as he thinks fit, provided that no shareholder shall be entitled
to cumulate votes unless such candidate or candidates names have been placed in nomination prior to
the voting and the shareholder has given notice at the meeting, prior to the voting, of the
shareholders intention to cumulate the shareholders votes. If any one shareholder has given such
notice, all shareholders may cumulate their votes for candidates in nomination. The candidates
receiving the highest number of votes of the shares entitled to be voted for them, up to the number
of directors to be elected by such shares, shall be elected.
3 .
Any holder of shares entitled to vote on any matter may vote part of the shares in
favor of the proposal and refrain from voting the remaining shares or vote them against the
proposal, other than elections to office, but, if the shareholder fails to specify the number of
shares such shareholder is voting affirmatively, it shall be conclusively presumed that the
shareholders approving vote is with respect to all shares said shareholder is entitled to vote.
Section 2.7 Quorum.
A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. If a
quorum is present, the affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on any matter shall be the act of the shareholders, unless otherwise required by
the Articles of Incorporation.
The shareholders present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
Section 2.8 Consent of Absentees.
The transactions of any meeting of shareholders, if not duly called and noticed, and wherever
held, shall be as valid as though had at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy, and if, either before or after the meeting, each of
the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All
such waivers, consents, or approvals shall be filed with the corporate records or made a part of
the minutes of the meeting.
Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when a person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or
convened; provided, that attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by law or these By-Laws to be included in the notice but not so
included if such objection is expressly made at the meeting.
4 .
Section 2.9 Action Without Meeting.
Any action which may be taken at any meeting of shareholders may be taken without a
meeting and without prior notice, if a consent in writing, setting forth the actions so taken,
shall be signed by the holders of outstanding shares having not less than the minimum number of
votes which would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted; provided, that except to fill a vacancy as
provided in Section 3.6 of these By-Laws, Directors may not be elected by written consent except by
unanimous written consent of all shares entitled to vote for the election of Directors.
Unless the consents of all shareholders entitled to vote have been solicited in writing,
notice of the following actions approved by shareholders without a meeting by less than unanimous
written consent shall be given to those shareholders entitled to vote who have not consented in
writing at least ten (10) days before the consummation of the action authorized by such approval:
1. Approval of a contract or other
transaction between the corporation and one or more of its Directors, or between the corporation
and any corporation, firm or association in which one or more of its Directors has a material
financial interest.
2. Approval of any indemnification to be
made by the corporation of a person who was or is a party or is threatened to be made a party to
any proceeding by reason of the fact that such person was or is an agent of the corporation.
3. Approval of the principal terms of a reorganization.
4. Approval of a plan of distribution of the shares, obligations or securities of any other
corporation, or assets other than money, which is not in accordance with the liquidation rights of
the preferred shares as specified in the Articles of Incorporation or a Certificate of
Determination.
Unless the consents of all shareholders entitled to vote have been solicited in writing,
prompt notice of the taking of any corporate action not listed above which is approved by
shareholders without a meeting by less than unanimous written consent, shall be given to those
shareholders entitled to vote who have not consented in writing.
5 .
Such notice shall be given as provided in Section 2.4 of these By-Laws.
Section 2.10 Proxies.
Every person entitled to vote shares may authorize another person or persons to act by proxy
with respect to such shares. No proxy shall be valid after the expiration of eleven (11) months
from the date thereof unless otherwise provided in the proxy.
ARTICLE III
DIRECTORS
Section 3.1 Powers.
Subject to the limitations stated in the Articles of Incorporation, these By-Laws, and the
California Corporations Code as to actions which shall be approved by the shareholders or by the
affirmative vote of a majority of the outstanding shares entitled to vote, and subject to the
duties of Directors as prescribed by the California Corporations Code, all corporate powers shall
be exercised by, or under the direction of, and the business and affairs of the corporation shall
be managed by, the Board of Directors.
Section 3.2 Number of Directors.
The authorized number of Directors of the
corporation shall be three (3) until changed by a By-Law duly adopted by the affirmative vote of a
majority of the outstanding shares entitled to vote amending this Section 3.2.
Section 3.3 Election and Term of Office.
The Directors shall be elected at each annual meeting of shareholders, but if any such annual
meeting is not held, or the Directors are not elected thereat, the Directors may be elected at any
special meeting of the shareholders held for that purpose. All Directors shall hold office until
the expiration of the term for which elected and until their respective successors are elected,
except in the case of the death, resignation or removal of any Director. A Director need not be a
shareholder.
Section 3.4 Resignation.
Any Director may resign effective upon giving written notice to the Chairman of the Board, the
President,
6 .
the Secretary or the Board of Directors of the corporation, unless the notice specifies a
later time for the effectiveness of such resignation. If the resignation is effective at a future
time, a successor may be elected to take office when the resignation becomes effective.
Section 3.5 Removal.
The entire Board of Directors or any individual Director may be removed from office, prior to
the expiration of their or his term of office only in the manner and within the limitations
provided by the California Corporations Code.
No reduction of the authorized number of Directors shall have the effect of removing any
Director prior to the expiration of such Directors term of office.
Section 3.6 Vacancies.
A vacancy in the Board of Directors shall be deemed to exist in case of the death, resignation
or removal of any Director, or if the authorized number of Directors be increased, or if the
shareholders fail at any annual or special meeting of shareholders at which any Director or
Directors are elected to elect the full authorized number of Directors to be voted for at that
meeting.
Vacancies in the Board of Directors may be filled by a majority of the Directors then in
office, whether or not less than a quorum, or by a sole remaining Director. Each Director so
elected shall hold office until the expiration of the term for which he was elected and until his
successor is elected at an annual or a special meeting of the shareholders, or until his death,
resignation or removal.
The shareholders may elect a Director or Directors at any time to fill any vacancy or
vacancies not filled by the Directors. Any such election by written consent other than to fill a
vacancy created by removal requires the consent of a majority of the outstanding shares entitled to
vote. A Director may not be elected by written consent to fill a vacancy created by removal except
by unanimous written consent of all shares entitled to vote for the election of directors.
Section 3.7 Organization Meeting.
Immediately after each annual meeting of
shareholders, the Board of Directors shall hold a regular meeting for the purpose of organization,
the election of officers and the transaction of other business. No notice of such meeting need be
given.
7 .
Section 3.8 Other Regular Meetings.
The Board of Directors may provide by resolution the time and place for the holding of regular
meetings of the Board; provided, however, that if the date so designated falls upon a legal
holiday, then the meeting shall be held at the same time and place on the next succeeding day which
is not a legal holiday. No notice of such regular meetings of the Board need be given.
Section 3.9 Calling Meetings.
Meetings of the Board of Directors for any purpose
or purposes shall be held whenever called by the Chairman of
the Board, the President or the Secretary or any two Directors of the corporation.
Section 3.10 Place of Meetings.
Meetings of the Board of Directors shall be held at any place within or without the State of
California which may be designated in the notice of the meeting, or, if not stated in the notice or
there is no notice, designated by resolution of the Board. In the absence of such designation,
meetings of the Board of Directors shall be held at the principal executive office of the
corporation.
Section 3.11 Telephonic Meetings.
Members of the Board may participate in a regular or special meeting through use of conference
telephone or similar communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section 3.11 constitutes presence
in person at such meeting.
Section 3.12 Notice of Special Meetings.
Written notice of the time and place of special meetings of the Board of Directors shall be
delivered personally to each Director, or sent to each Director by mail, telephone or telegraph. In
case such notice is sent by mail, it shall be deposited in the United States mail at least four (4)
days prior to the time of the holding of the meeting. In case such notice is delivered personally,
or by telephone or telegraph, it shall be so delivered at least forty-eight (48) hours prior to the
time of the holding of the meeting. Such notice may be given by the Secretary of the corporation or
by the persons who called said meeting. Such notice need not specify the purpose of the meeting,
and
8 .
notice shall not be necessary if appropriate waivers, consents and/or approvals
are filed in accordance with Section 3.13 of these By-Laws.
Section 3.13 Waiver of Notice.
Notice of a meeting need not be given to any Director who signs a waiver of notice, whether
before or after the meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
The transactions of any meeting of the Board of Directors, however called and noticed or
wherever held, shall be as valid as though had at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice, a consent to holding the meeting or an approval of the
minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting.
Section 3.14 Action Without Meeting.
Any action required or permitted to be taken by the Board of Directors may be taken without a
meeting, if all members of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a unanimous vote of
such Directors.
Section 3.15 Quorum.
A majority of the authorized number of Directors shall constitute a quorum for the transaction
of business. Every act or decision done or made by a majority of the Directors present at a meeting
duly held at which a quorum is present shall be the act of the Board of Directors, unless the
Articles of Incorporation, or the California Corporations Code, specifically requires a greater
number. In the absence of a quorum at any meeting of the Board of Directors, a majority of the
Directors present may adjourn the meeting as provided in Section 3.16 of these By-Laws. A meeting
at which a quorum is initially present may continue to transact business, notwithstanding the
withdrawal of enough Directors to leave less than a quorum, if any action taken is approved by at
least a majority of the required quorum for such meeting.
9 .
Section 3.16 Adjournment.
Any meeting of the Board of Directors, whether or not a quorum is present, may be adjourned to
another time and place by the vote of a majority of the Directors present. Notice of the time and
place of the adjourned meeting need not be given to absent Directors if said time and place are
fixed at the meeting adjourned.
Section 3.17 Inspection Rights.
Every Director shall have the absolute right at any time to inspect, copy and make extra
copies of, in person or by agent or attorney, all books, records and documents of every kind and to
inspect the physical properties of the corporation.
Section 3.18 Fees and Compensation.
Directors shall not receive any stated salary for their services as directors, but, by
resolution of the Board, a fixed fee, with or without expenses of attendance, may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to preclude any Director
from serving the corporation in any other capacity as an officer, agent, employee, or otherwise,
and receiving compensation therefor.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 4.1 Executive Committee.
The Board of Directors may, by resolution adopted by a majority of the authorized number of
Directors, appoint an executive committee, consisting of two or more Directors. The Board may
designate one or more Directors as an alternate member of such committee, who may replace any
absent member of any meeting of the committee. The executive committee, subject to any limitations
imposed by the California Corporations Code, or by resolution adopted by the affirmative vote of a
majority of the authorized number of Directors, or imposed by the Articles of Incorporation or by
these By-Laws, shall have and may exercise all of the powers of the Board of Directors.
Section 4.2 Other Committees.
The Board of Directors may, by resolution adopted by a majority of the authorized number of
Directors, designate such other committees, each consisting of 2 or more
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Directors, as it may from time to time deem advisable to perform such general or special
duties as may from time to time be delegated to any such committee by the Board of Directors,
subject to the limitations contained in the California Corporations Code, or imposed by the
Articles of Incorporation or by these By-Laws. The Board may designate one or more Directors as
alternate members of any committee, who may replace any absent member at any meeting of the
committee.
Section 4.3 Minutes and Reports.
Each committee shall keep regular minutes of its proceedings, which shall be filed with the
Secretary. All action by any committee shall be reported to the Board of Directors at the next
meeting thereof, and, insofar as rights of third parties shall not be affected thereby, shall be
subject to revision and alteration by the Board of Directors.
Section 4.4 Meetings.
Except as otherwise provided in these By-Laws or by resolution of the Board of Directors, each
committee shall adopt its own rules governing the time and place of holding and the method of
calling its meetings and the conduct of its proceedings and shall meet as provided by such rules,
and it shall also meet at the call of any member of the committee. Unless otherwise provided by
such rules or by resolution of the Board of Directors, committee meetings shall be governed by
Sections 3.11, 3.12 and 3.13 of these By-Laws.
Section 4.5 Term of Office of Committee Members.
The term of office of any committee member shall be as provided in the resolution of the Board
of Directors designating him but shall not exceed his term as a Director. Any member of a committee
may be removed at any time by resolution adopted by Directors holding a majority of the
directorships, either present at a meeting of the Board or by written approval thereof.
ARTICLE V
OFFICERS
Section 5.1 Officers.
The officers of the corporation shall be a President, a Vice President, a Secretary, and a
Treasurer, who shall be the Chief Financial Officer of the corporation. The corporation may also
have, at the discretion of the Board
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of Directors, a Chairman of the Board, one or more additional Vice Presidents, one or more
Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions
of Section 5.3. One person may hold two or more offices.
Section 5.2 Election.
The officers of the corporation, except such officers as may be appointed in accordance with
the provisions of Sections 5.3 and 5.5, shall be chosen annually by the Board of Directors and each
shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve,
or his successor shall be elected and qualified.
Section 5.3 Subordinate Officers, etc.
The Board of Directors may appoint such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority and perform such
duties as are provided in these By-Laws or as the Board of Directors may from time to time
determine.
Section 5.4 Removal and Resignation.
Any officer may be removed, either with or without cause, by a majority of the Directors at
the time in office, at any regular or special meeting of the Board, or, except in case of an
officer chosen by the Board of Directors, by an officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the corporation. Any such
resignation shall take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 5.5 Vacancies.
A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the manner prescribed
in these By-Laws for regular appointments to such office.
Section 5.6 Chairman of the Board.
The Chairman of the Board, if there shall be such an officer, shall, if present, preside at
all meetings of the
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Board of Directors, and exercise and perform such other powers and duties as may be from
time to time assigned to him by the Board of Directors or prescribed by these By-Laws.
Section 5.7 President.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
Chairman of the Board, if there be such an officer, the President shall be the general manager and
chief executive officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction, and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders. He shall be ex officio a member
of all the standing committees, including the executive committee, if any, and shall have the
general powers and duties of management usually vested in the office of president of a corporation,
and shall have such other powers and duties as may be prescribed by the Board of Directors or by
these By-Laws.
Section 5.8 Vice President.
In the absence or disability of the President, the Vice Presidents in order of their rank as
fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such
other powers and perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or these By-Laws.
Section 5.9 Secretary.
The Secretary shall keep, or cause to be kept, a book of minutes in written form of the
proceedings of the Board of Directors, committees of the Board, and shareholders. Such minutes
shall include all waivers of notice, consents to the holding of meetings, or approvals of the
minutes of meetings executed pursuant to these By-Laws or the California Corporations Code. The
Secretary shall keep, or cause to be kept at the principal executive office or at the office of the
corporations transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each.
The Secretary shall give or cause to be given, notice of all meetings of the shareholders and
of the Board of Directors required by these By-Laws or by law to be given, and shall keep the seal
of the corporation in safe custody,
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and shall have such other powers and perform such other duties as may be prescribed by
the Board of Directors or these By-Laws.
Section 5.10 Treasurer and Chief Financial Officer.
The Treasurer and Chief Financial Officer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of account in written form or any other form
capable of being converted into written form.
The Treasurer and Chief Financial Officer shall deposit all monies and other valuables in the
name and to the credit of the corporation with such depositaries as may be designated by the Board
of Directors. He shall disburse all funds of the corporation as may be ordered by the Board of
Directors, shall render to the President and Directors, whenever they request it, an account of all
of his transactions as Treasurer and Chief Financial Officer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as may be prescribed by
the Board of Directors or by these By-Laws.
Section 5.11 Assistant Secretary.
The Assistant Secretary shall have all the powers, and perform all the duties of, the
Secretary in the absence or inability of the Secretary to act.
Section 5.12 Compensation.
The compensation of the officers shall be fixed from time to time by the Board of Directors,
and no officer shall be prevented from receiving such compensation by reason of the fact that he is
also a Director of the corporation.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Record Date.
The Board of Directors may fix, in advance, a time in the future as the record date for the
determination of shareholders entitled to notice of any meeting or to vote or entitled to receive
payment of any dividend or other distribution or allotment of any rights or entitled to exercise
any rights in respect of any other lawful action. Shareholders on the record date are entitled to
notice and to vote or receive the dividend, distribution or allotment of
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rights or to exercise the rights, as the case may be, notwithstanding any transfer of any
shares in the books of the corporation after the record date, except as otherwise provided by law.
Said record date shall not be more than sixty (60) or less than ten (10) days prior to the date of
such meeting, nor more than sixty (60) days prior to any other action.
A determination of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the Board fixes a new record date
for the adjourned meeting, but the Board shall fix a new record date if the meeting is adjourned
for more than forty-five (45) days from the date set for the original meeting.
If no record date is fixed by the Board of Directors, the record date shall be fixed
pursuant to the California Corporations Code.
Section 6.2 Inspection of Corporate Records.
The accounting books and records, and minutes of proceedings of the shareholders and the Board
of Directors and committees of the Board shall be open to inspection upon written demand made upon
the corporation by any shareholder or the holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to his interest as a
shareholder, or as the holder of such voting trust certificate. The record of shareholders shall
also be open to inspection by any shareholder or holder of a voting trust certificate at any time
during usual business hours upon written demand on the corporation, for a purpose reasonably
related to such holders interest as a shareholder or holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney, and shall include the right to copy
and to make extracts.
Section 6.3 Execution of Corporate Instruments.
The Board of Directors may, in its discretion, determine the method and designate the
statutory officer or officers, or other person or persons, to execute any corporate instrument or
document, or to sign the corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall be binding upon the corporation. Unless otherwise
specifically determined by the Board of Directors, formal contracts of the corporation, promissory
notes, mortgages, evidences of indebtedness, conveyances or other instruments in writing, and any
assignment or endorsement thereof, executed or entered into
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between the corporation and any person, may be signed by the Chairman of the Board, the
President, any Vice President, the Secretary or the Treasurer of the corporation.
Section 6.4 Ratification by Shareholders.
The Board of Directors may, subject to applicable notice requirements, in its discretion,
submit any contract or act for approval or ratification of the shareholders at any annual meeting
of shareholders, or at any special meeting of shareholders called for that purpose; and any
contract or act which shall be approved or ratified by the affirmative vote of a majority of the
shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the
written consent of shareholders, shall be as valid and binding upon the corporation and upon the
shareholders thereof as though approved or ratified by each and every shareholder of the
corporation, unless a greater vote is required by law for such purpose.
Section 6.5 Annual Report.
For so long as the corporation has less than 100 holders of record of its shares, the
mandatory requirement of an annual report is hereby expressly waived. The Board of Directors may,
in its discretion, cause an annual report to be sent to the shareholders. Such reports shall
contain at least a balance sheet as of the close of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year, and shall be accompanied by any
report thereon of independent accountants, or if there is no such report, the certificate of an
authorized officer of the corporation that such statements were prepared without audit in the books
and records of the corporation.
A shareholder or shareholders holding at least five percent (5%) of the outstanding shares of
any class of the corporation may make a written request to the corporation for an income statement
and/or a balance sheet of the corporation for the three-month, six-month or nine-month period of
the current fiscal year ended more than thirty (30) days prior to the date of the request, and such
statement shall be delivered or mailed to the person making the request within thirty (30) days
thereafter. Such statements shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificates of an authorized officer of the
corporation that such financial statements were prepared without audit from the books and records
of the corporation.
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Section 6.6 Representation of Shares of Other Corporations.
The President and Vice President of this
corporation are authorized to vote, represent and exercise on behalf of the corporation all rights
incident to any and all shares of any other corporation or corporations standing in the name of
this corporation. The authority herein granted to said officers to vote or represent on behalf of
this corporation any and all shares held by this corporation and any other corporation or
corporations may be exercised either by such officers in person or by any person authorized so to
do by proxy or power of attorney and duly executed by said officers.
Section 6.7 Inspection of By-Laws.
The corporation shall keep in its principal
executive office in this State the original or a copy of the By-Laws as amended or otherwise
altered to date, which shall be open to inspection by the shareholders at all reasonable times
during office hours.
ARTICLE VII
SHARES OF STOCK
Section 7.1 Form of Certificates.
Certificates for shares of stock of the
corporation shall be in such form and design as the Board of Directors shall determine and shall be
signed in the name of the corporation by the Chairman of the Board, or the President or Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or any Assistant
Secretary. Each certificate shall state the certificate number, the date of issuance, the number,
class or series and the name of the record holder of the shares represented thereby, the name of
the corporation, and, if the shares of the corporation are classified or if any class of shares has
two or more series, there shall appear the statement required by the California Corporations Code.
Section 7.2 Transfer of Shares.
Shares of stock may be transferred in any manner permitted or provided by law. Before any
transfer of stock is entered upon the books of the corporation, or any new certificate issued
therefor, the older certificate, properly endorsed, shall be surrendered and cancelled, except when
a certificate has been lost, stolen or destroyed.
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Section 7.3 Lost Certificates.
The Board of Directors may order a new certificate for shares of stock to be issued in
the place of any certificate alleged to have been lost, stolen or destroyed, but in every such
case, the owner or the legal representative of the owner of the lost, stolen or destroyed
certificates may be required to give the corporation a bond (or other adequate security) in such
form and amount as the Board may deem sufficient to indemnify it against any claim that may be made
against the corporation (including any expense or liability) on account of the alleged loss, theft
or destruction of any such certificate or issuance of such new certificate.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Indemnification by Corporation.
The Board may, in its discretion, indemnify any Director, officer, employee or other
agent of the corporation against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in a proceeding (including a derivative action on behalf of the
corporation) to which that person was or is threatened to be made a party by reason of the fact
that he was or is an agent of the corporation, but only to the extent allowed by the California
Corporations Code and subject to Director or shareholder approval as required by said code.
In no event shall anything herein contained be construed as authorizing the corporation to
indemnify any such Director or officer against any liability or expense by reason of willful
malfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office. The foregoing right of indemnification shall not be exclusive of other
rights as to which any Director or officer may be entitled by law.
Section 8.2 Advancing Expenses.
The corporation may advance to each Director or officer the expenses incurred in defending any
proceeding referred to in Section 8.1 of these By-Laws prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the Director or officer to repay such
amount unless it shall be determined ultimately
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that the Director or officer is entitled to be indemnified as authorized in Section 8.1 of
these By-Laws.
ARTICLE IX
AMENDMENTS
Section 9.1 Power of Shareholders.
New By-Laws may be adopted or these By-Laws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares entitled to vote or by the written consent
thereof, except as otherwise provided by law or by the Articles of Incorporation.
Section 9.2 Power of Directors.
Subject to the right of shareholders as provided in Section 9.1 of these By-Laws, By-Laws
other than a By-Law or amendment thereof specifying or changing the authorized number of Directors,
or the minimum or maximum number of a variable Board of Directors, or changing from a fixed to a
variable Board of Directors or vice versa, may be adopted, amended or repealed by the approval of
the Board of Directors.
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exv3w433
Exhibit 3.433
ARTICLES OF INCORPORATION
OF
DELTA DADE RECYCLING CORP.
The undersigned hereby forms a Corporation
under the following Charter of Articles of Incorporation:
ARTICLE I
NAME
The name of this Corporation shall be DELTA DADE RECYCLING CORP.
ARTICLE II
PRINCIPAL OFFICE AND MAILING ADDRESS
A. The street address of the initial principal office of the Corporation shall be 2075
North
Powerline Road, Pompano Beach, Florida 33069.
B. The mailing address of the Corporation shall be 2075 North Powerline Road,
Pompano Beach, Florida 33069.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any activity or business peimitted under
the laws of the United States of America or the State of Florida.
ARTICLE IV
AUTHORIZED SHARES OF STOCK
The Corporation shall have the authority to issue Five Hundred (500)shares of common
stock with a par value of One Dollar ( $1.00) per share.
ARTICLE V
DURATION
The period of this Corporations existence is perpetual.
ARTICLE VI
REGISTERED OFFICE AND AGENT
The street address of the initial Registered Office of this Corporation is 1200 South Pine
Island Road, Plantation, Florida 33324; and the initial Registered Agent of this Corporation at
that address is CT CORPORATION SYSTEM.
ARTICLE VII
INCORPORATOR
The name and address of the Incorporator is as follows:
MICHAEL MARZANO
2075 North Powerline Road
Pompano Beach, Florida 33069
ARTICLE VIII
AMENDMENTS
These Articles of Incorporation may be amended in the manner provided by law.
ARTICLE IX
INDEMNIFICATION
The Corporation shall indemnify its Officers, Directors and Authorized Agents for all
liabilities incurred directly, indirectly or incidentally to services performed for the
Corporation, to the fullest extent permitted under Florida law existing now or hereafter enacted.
IN WITNESS WHEREOF, the undersigned Incorporator has made and executed these
Articles of Incorporation of DELTA DADE RECYCLING CORP, for the uses and purposes
aforesaid this 20th day of October, 2000.
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/s/ Michael Marzano
MICHAEL MARZANO, Incorporator
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(The execution of These Articles of Incorporation constitutes an affirmation under penalties
of perjury that the facts stated herein are true).
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CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE
FOR THE SERVICE OF PROCESS WITHIN THIS STATE,
NAMING AGENT UPON WHOM PROCESS MAY BE SERVED.
* * * * * * *
Pursuant to Chapter 48.091, Florida Statutes, the following is submitted, in
compliance with said Act:
First, that DELTA DADE RECYCLING CORP. desiring to organize under the laws of the State of
Florida, with its principal office as indicated in the Articles of Incorporation at 2075 North
Powerline Road, Pompano Beach, Florida 33069, has named CT CORPORATION SYSTEM located at 1200 South
Pine Island Road, Plantation, Florida 33324, as its agent to accept service of process within this
state.
ACKNOWLEDGMENT
Having been named to accept Service of Process for the above stated Corporation, at place
designated in this Certificate, the undersigned hereby accepts to act in this capacity, and agrees
to comply with the provisions of said act relative to keeping open said office.
DATED this 20th day of October, 2000.
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CT CORPORATION SYSTEM |
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By:
Its:
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/s/ Peter F. Souza
Peter F. Souza
ASSISTANT SECRETARY
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3
exv3w434
Exhibit 3.434
AMENDED AND RESTATED BYLAWS
OF
DELTA DADE RECYCLING CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
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Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
6
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
11
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w435
Exhibit 3.435
CONRAD T. HUBNER, ESQ.
690 Market Street, Suite 1400
San Francisco, California 94104
Telephone: (415) 986-5200
ARTICLES OF INCORPORATION
OF
DELTA PAPER STOCK, CO.
I |
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The name of this corporation is DELTA PAPER STOCK, CO. |
II |
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The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practise of a profession permitted to be incorporated by the California
Corporations Code. |
III |
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The name and the address in the State of California of the
corporations initial agent for service of process is |
Gregory Basso
6416 Monitor Place
Stockton, Ca 95209
IV |
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This corporation is authorized to issue only one class of stock and
the total number of shares which this corporation shall have authority to issue
is three thousand (3000) shares; the par value of each share is one hundred
dollars ($100); the aggregate par value of all shares is three hundred thousand
dollars ($300,000) |
V |
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There shall be three
directors; the names and
addresses of the persons who are
to act in the capacity of
directors until the selection
of their successors are: |
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NAME |
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ADDRESS |
Frank J. Garavano
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7411 Parkwood Drive |
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Stockton, Ca 95207 |
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Gregory Basso
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6416 Monitor Place |
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Stockton, Ca 95209 |
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Joseph L Betts
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205 Drouin Drive |
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Rio Vista, Ca 94571 |
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of July, 1978.
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/s/ Frank J. Garavano
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Frank J. Garavano |
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/s/ Gregory Basso
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Gregory Basso |
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/s/ Joseph L Betts
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Joseph L Betts |
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The undersigned each for himself does hereby declare, I am one of persons who executed the
foregoing Articles of Incorporation, which execution is my act and deed.
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/s/ Gregory Basso
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Gregory Basso |
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/s/ Frank J. Garavano
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Frank J. Garavano |
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/s/ Joseph L Betts
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Joseph L Betts |
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exv3w436
Exhibit 3.436
BYLAWS
OF
DELTA PAPER STOCK, CO.
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICES. The board of directors shall fix the location of the principal
executive office of the corporation at any place within or outside the State of California. If the
principal executive office is located outside this state, and the corporation has one or more
business offices in this state, the board of directors shall fix and designate a principal business
office in the State of California. Initially the principal office shall be located at 403 S. Lincoln, Stockton, California.
Section 2. OTHER OFFICES. The board of directors may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any place within or
outside the State of California designated by the board of directors. In the absence of any such
designation, shareholders meetings shall be held at the principal executive office of the
corporation.
Section 2. ANNUAL MEETING. The annual meeting of
shareholders shall be held on the day of
in each year at 2:00 p.m. oclock, or within sixty days
thereafter. At this meeting, directors shall be elected, and any other proper business may be
transacted.
Section 3. SPECIAL MEETING. A special meeting of the shareholders may be called at any time
by the board of directors, or by the chairman of the board, or by the president, or vice president,
or by one or more shareholders holding shares in the aggregate entitled to cast not less than 10
per cent of the votes at that meeting.
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Section 4. NOTICE OF SHAREHOLDERS MEETINGS. All notices of meetings of shareholders shall
be sent or otherwise given in accordance with Section 5 of this Article II not less than ten (10)
nor more than sixty (60) days before the date of the meeting. The notice shall specify the place,
date and hour of the meeting and (i) in the case of a special meeting, the general nature of the
business to be transacted, or (ii) in the case of the annual meeting, those matters which the board
of directors, at the time of giving the notice, intends to present for action by the shareholders.
If action is proposed to be taken at any meeting for approval of (i) a contract or transaction
in which a director has a direct or indirect financial interest, pursuant to Section 310 of the
Corporations Code of California, (ii) an amendment of the articles of incorporation, pursuant to
Section 902 of that Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of
that Code, (iv) a voluntary dissolution of the corporation, pursuant to Section 1900 of that Code,
or (v) a distribution in dissolution other than in accordance with the rights of outstanding
preferred shares, pursuant to Section 2007 of that Code, the notice shall also state the general
nature of that proposal.
Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of
shareholders shall be given either personally or by first-class mail or telegraphic or other
written communication, charges prepaid, addressed to the shareholder at the address of that
shareholder appearing on the books of the corporation or given by the shareholder to the
corporation for the purpose of notice.
Section 6. QUORUM. The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at any meeting of shareholders shall constitute a quorum for the
transaction of business.
Section 7. ADJOURNED MEETING; NOTICE. Any shareholders meeting, annual or special, whether
or not a quorum is present, may be adjourned from time to time by the vote of the majority of the
shares represented at that meeting, either in person or by proxy, but in the absence of a quorum,
no other business may be transacted at that meeting, except as provided in Section 6 of this
Article II.
Section 8. VOTING. The shareholders entitled to vote at any meeting of shareholders shall be
determined in accordance with the provisions of Section 11 of this Article II, subject to the
provisions of Section 702 to
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704, inclusive, of the Corporations Code of California (relating to voting shares held by a
fiduciary, in the name of a corporation, or in joint ownership). The shareholders vote may
be by voice vote or by ballot; provided, however, that any election for directors must be by
ballot if demanded by any shareholder before the voting has begun.
Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any
meeting of shareholders, either annual or special, however called and noticed, and wherever held,
shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum
be present either in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or a
consent to a holding of the meeting, or an approval of the minutes.
Attendance by a person at a meeting shall also constitute a waiver of notice of that
meeting, except when the person objects, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened, and except that
attendance at a meeting is not a waiver of any right to object to the consideration of matters
not included in the notice of the meeting if that objection is expressly made at the meeting.
Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may be
taken at any annual or special meeting of shareholders may be taken without a meeting and without
prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that would be necessary to
authorize or take that action at a meeting at which all shares entitled to vote on that action were
present and voted.
Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS. For purposes of
determining the shareholders entitled to notice of any meeting or to vote or entitled to give
consent to corporate action without a meeting, the board of directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any such action without a meeting, and in
this event only shareholders of record on the date so fixed are entitled to notice and to vote or
to give consents, as the case may be, notwithstanding any transfer of any shares on the books of
the corporation after the record date, except as otherwise provided in the California General
Corporation Law.
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Section 12. PROXIES. Every person entitled to vote for directors or on any other matter
shall have the right to do so either in person or by one or more agents authorized by a written
proxy signed by the person and filed with the secretary of the corporation. A validly executed
proxy which does not state that it is irrevocable shall continue in full force and effect unless
(i) revoked by the person executing it, before the vote pursuant to that proxy, by a writing
delivered to the corporation stating that the proxy is revoked, or by a subsequent proxy executed
by, or attendance at the meeting and voting in person by, the person executing the proxy; or (ii)
written notice of the death or incapacity of the maker of that proxy is received by the corporation
before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid
after the expiration of eleven (11) months from the date of the proxy, unless otherwise provided in
the proxy.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the provisions of the California General Corporation Law and
any limitations in the articles of incorporation and these bylaws relating to action required to be
approved by the shareholders or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be exercised by or under the direction
of the board of directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS.
The authorized number of directors shall be 3 until
changed by a duly adopted amendment to the articles of incorporation.
Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be elected at each
annual meeting of the shareholders to hold office until the next annual meeting. Each director,
including a director elected to fill a vacancy, shall hold office until the expiration of the term
for which elected and until a successor has been elected and qualified.
Section 4. VACANCIES. Vacancies in the board of directors may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director.
Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular meetings of the board of
directors may be held at
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any place within or outside the State of California that has been designated from time to time by
resolution of the board. In the absence of such a designation, regular meetings shall be held at
the principal executive office of the corporation. Special meetings of the board shall be held at
any place within or outside the State of California that has been designated in the notice of the
meeting or, if not stated in the notice or there is no notice, at the principal executive office of
the corporation. Any meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating in the meeting can hear one
another, and all such directors shall be deemed to be present in person at the meeting.
Section 6. ANNUAL MEETING. Immediately following each annual meeting of shareholders, the
board of directors shall hold a regular meeting for the purpose of organization, any desired
election of officers, and the transaction of other business. Notice of this meeting shall not be
required.
Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board of directors
shall be held without call at such time as shall from time to time be fixed by the board of
directors. Such regular meetings may be held without notice.
Section 8. SPECIAL MEETINGS. Special meetings of the board of directors for any purpose or
purposes may be called at any time by the chairman of the board or the president or any vice
president or the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered personally or by telephone
to each director or sent by first-class mail or telegram, charges prepaid, addressed to each
director at that directors address as it is shown on the records of the corporation. In case the
notice is mailed, it shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. In case the notice is delivered personally, or by telephone or
telegram, it shall be delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a person at the office
of the director who the person giving the notice has reason to believe will promptly communicate it
to the director. The notice need not specify the purpose of the meeting nor the place if the
meeting is to be held at the principal executive office of the corporation.
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Section 9. QUORUM. A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section 11 of this Article
III. A meeting at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by at least a
majority of the required quorum for that meeting.
Section 10. WAIVER OF NOTICE. The transactions of any meeting of the board of directors,
however called and noticed or wherever held, shall be as valid as though had at a meeting duly held
after regular call and notice if a quorum is present and if, either before or after the meeting,
each of the directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes. The waiver of notice or consent need not specify the
purpose of the meeting. All such waivers, consents, and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be
deemed given to any director who attends the meeting without protesting before or at its
commencement, the lack of notice to that director.
Section 11. ADJOURNMENT. A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and place.
Section 12. ACTION WITHOUT MEETING. Any action required or permitted to be taken by the
board of directors may be taken without a meeting, if all members of the board shall individually
or collectively consent in writing to that action. Such action by written consent shall have the
same force and effect as a unanimous vote of the board of directors. Such written consent or
consents shall be filed with the minutes of the proceedings of the board.
Section 13. FEES AND COMPENSATION OF DIRECTORS. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement of expenses, as
may be fixed or determined by resolution of the board of directors.
ARTICLE IV
COMMITTEES
Section 1. COMMITTEES OF DIRECTORS. The board of directors may, by resolution adopted
by a majority of the authorized number of directors, designate one or more committees, each
consisting of two or more directors, to
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serve at the pleasure of the board. The board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of the committee. Any
committee, to the extent provided in the resolution of the board, shall have all the authority of
the board, except as to matters set forth in Corporations Code 311.
Section 2. MEETINGS AND ACTION OF COMMITTEES. Meetings and action of committees shall be
governed by, and held and taken in accordance with the provisions at law and in these Bylaws
applicable to directors.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a president, a secretary, and
a chief financial officer. The corporation may also have, at the discretion of the board of
directors, a chairman of the board, one or more vice presidents, one or more assistant secretaries,
one or more assistant treasurers, and such other officers as may be appointed in accordance with
the provisions of Section 3 of this Article V. Any number of offices may be held by the same
person.
Section 2. ELECTION OF OFFICERS. The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section 3 of this Article V, shall be chosen
by the board of directors, and each shall serve at the pleasure of the board, subject to the
rights, if any, of an officer under any contract of employment.
Section 3. SUBORDINATE OFFICERS. The board of directors may appoint, and may empower the
president to appoint, such other officers as the business of the corporation may require, each of
whom shall hold office for such period, have such authority and perform such duties as are provided
in the bylaws or as the board of directors may from time to time determine.
Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of an officer
under any contract of employment, any officer may be removed, either with or without cause, by the
board of directors, at any regular or special meeting of the board, or, except in case of an
officer chosen by the board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
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Section 5. VACANCIES IN OFFICES. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner prescribed in these
bylaws for regular appointments to that office.
Section 6. CHAIRMAN OF THE BOARD. The chairman of the board, if such an officer be elected,
shall, if present, preside at meetings of the board of directors and exercise and perform such
other powers and duties as may be from time to time assigned to him by the board of directors or
prescribed by the bylaws. If there is no president, the chairman of the board shall in addition be
the chief executive officer of the corporation and shall have the powers and duties prescribed in
Section 7 of this Article V.
Section 7. PRESIDENT. Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman of the board, if there be such an officer, the president shall
be the chief executive officer of the corporation and shall, subject to the control of the board of
directors, have general supervision, direction, and control of the business and the officers of the
corporation. He shall preside at all meetings of the shareholders and, in the absence of the
chairman of the board, or if there be none, at all meetings of the board of directors. He shall
have the general powers and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by the board of
directors or the bylaws.
Section 8. VICE PRESIDENTS. In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a
vice president designated by the board of directors, shall perform all the duties of the president,
and when so acting shall have all the powers of, and be subject to all the restrictions upon the
president. The vice presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the board of directors or the bylaws, and
the president, or the chairman of the board.
Section 9. SECRETARY. The secretary shall keep or cause to be kept, at the principal
executive office or such other place as the board of directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors, and shareholders, with the time and
palce of holding, whether regular or special, and, if special, how authorized, the notice given,
the names of those present at directors meetings or committee meetings, the number of
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shares present or represented at shareholders meetings, and the proceedings.
The secretary shall keep, or cause to be kept, at the principal executive office or at the
office of the corporations transfer agent or registrar, as determined by resolution of the board
of directors, a share register, or a duplicate share register, showing the names of all
shareholders and their addresses, the number and classes of shares held by each, the number and
date of certificates issued for the same, and the number and date of cancellation of every
certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings of the shareholders and
of the board of directors required by the bylaws or by law to be given, and he shall keep the seal
of the corporation if one be adopted, in safe custody, and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or by the bylaws.
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The
books of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by the board of
directors. He shall disburse the funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever they request it, an account of
all of his transactions as chief financial officer and of the financial condition of the
corporation, and shall have other powers and perform such other duties as may be prescribed by
the board of directors or the bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
The corporation shall, to the maximum extent permitted by the California General Corporation
Law, indemnify each of its agents against expenses, judgments, fines, settlements
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and other amounts actually and reasonably incurred in connection with any proceeding arising by
reason of the fact any such person is or was an agent of the corporation. For purposes of this
Section, an agent of the corporation includes any person who is or was a director, officer,
employee, or other agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, or was a director, officer, employee, or agent of a corporation which
was a predecessor corporation of the corporation or of another enterprise at the request of such
predecessor corporation.
ARTICLE VII
RECORDS AND REPORTS
Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The corporation shall keep at its
principal executive office, or at the office of its transfer agent or registrar, if either be
appointed and as determined by resolution of the board of directors, a record of its shareholders,
giving the names and addresses of all shareholders and the number and class of shares held by each
shareholder.
Section 2. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in
Section 1501 of the California General Corporation Law is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the board of directors from issuing annual or other
periodic reports to the shareholders of the corporation as they consider appropriate.
Section 3. FINANCIAL STATEMENTS. A copy of any annual financial statement and any income
statement of the corporation for each quarterly period of each fiscal year, and any accompanying
balance sheet of the corporation as of the end of each such period, that has been prepared by the
corporation shall be kept on file in the principal executive office of the corporation for twelve
(12) months and each such statement shall be exhibited at all reasonable times to any shareholder
demanding an examination of any such statement or a copy shall be mailed to any such shareholder.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of
determining the shareholders
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entitled to receive payment of any dividend or other distribution or allotment of any rights or
entitled to exercise any rights in respect of any other lawful action (other than action by
shareholders by written consent without a meeting), the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) days before any such action, and in that case
only shareholders of record on the date so fixed are entitled to receive the dividend,
distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding
any transfer of any shares on the books of the corporation after the record date so fixed, except
as otherwise provided in the California General Corporation Law.
If the board of directors does not so fix a record date, the record date for determining
shareholders for any such purpose shall be at the close of business on the day on which the board
adopts the applicable resolution.
Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other orders
for payment of money, notes, or other evidences of indebtedness, issued in the name of or
payable to the corporation, shall be signed or endorsed by such person or persons and in such
manner as, from time to time, shall be determined by resolution of the board of directors.
Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The board of directors, except
as otherwise provided in these bylaws, may authorize any officer or officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf of the corporation,
and this authority may be general or confined to specific instances; and, unless so authorized or
ratified by the board of directors or within the agency power of an officer, no officer, agent, or
employee shall have any power or authority to bind the corporation by any contract or engagement or
to pledge its credit or to render it liable for any purpose or for any amount.
Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for shares of the capital
stock of the corporation shall be issued to each shareholder when any of these shares are fully
paid. All certificates shall be signed in the name of the corporation by the president or vice
president and by the chief financial officer or an assistant treasurer or the secretary or any
assistant secretary.
Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no new certificates
for shares shall be issued to replace an old certificate unless the latter is
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surrendered to the corporation and cancelled at the same time. The board of directors may, in case
any share certificate or certificate for any other security is lost, stolen, or destroyed,
authorize the issuance of a replacement certificate on such terms and conditions as the board may
require.
Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairman of the board, the
president, or any vice president, or any other person authorized by resolution of the board of
directors or by any of the foregoing designated officers, is authorized to vote on behalf of the
corporation any and all shares of any other corporation or corporations, foreign or domestic,
standing in the name of the corporation.
Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the California General Corporation Law shall
govern the construction of these bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the singular, and the term person
includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these bylaws may be
amended or repealed by the vote or written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that if the articles of incorporation of the
corporation set forth the number of authorized directors of the corporation, the authorized number
of directors may be changed only by an amendment of the articles of incorporation.
Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the shareholders as provided
in Section 1 of this Article IX, bylaws, other than a bylaw or an amendment of a bylaw changing
the authorized number of directors, may be adopted, amended, or repealed by an absolute
majority of the board of directors.
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exv3w437
Exhibit 3.437
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FILED |
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SECRETARY OF STATE |
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[ILLEGIBLE] OF CORPORATIONS |
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99 JAN 29 AM 11:29 |
ARTICLES OF INCORPORATION
OF
DELTA RESOURCES CORP.
The undersigned incorporator hereby forms a corporation under Chapter 607 of the laws of
the State of Florida.
ARTICLE I. NAME
The name of the corporation shall be:
DELTA RESOURCES CORP.
The address of the principal office of this corporation shall be 3300 NW 27th Avenue, Pompano
Beach, Florida 33069, and the mailing address of the corporation shall be the same.
ARTICLE II. NATURE OF BUSINESS
This corporation may engage or transact in any or all lawful activities or business
permitted under the laws of the United States, the State of Florida or any other state,
country, territory or nation.
ARTICLE III. CAPITAL STOCK
The maximum number of shares of stock that this corporation is authorized to have outstanding
at any one time is 10000 shares of common stock having $1.00 par value per share.
ARTICLE IV. REGISTERED AGENT
The street address of the initial registered office of the corporation shall be 1201 Hays
Street, Tallahassee, Florida 32301, and the name of the initial registered agent of the corporation
at that address is Corporation Service Company.
ARTICLE V. TERM OF EXISTENCE
This corporation is to exist
perpetually.
ARTICLE VI. INCORPORATOR
The name and street address of the incorporator to
these Articles of Incorporation:
Corporation Service Company
1201 Hays Street
Tallahassee, Florida 32301
IN WITNESS WHEREOF, the undersigned agent of Corporation Service Company, has hereunto set
their hand and seal of Corporation Service Company on January 29, 1999.
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CORPORATION SERVICE COMPANY
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By: |
/s/ Karen B. Rozar
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Its Agent, Karen B. Rozar |
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ASSIGNMENT BY THE SOLE INCORPORATOR
OF THE ARTICLES OF INCORPORATION OF
DELTA RESOURCES CORP.
Corporation Service Company, as sole incorporator, for value received hereby assigns any and
all rights it may have as such incorporator to the following:
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Dated: February 1, 1999
CORPORATION SERVICE COMPANY
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By: |
/s/ Karen B. Rozar
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Its Agent, Karen B. Rozar |
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exv3w438
Exhibit 3.438
AMENDED AND RESTATED BYLAWS
OF
DELTA RESOURCES CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
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Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
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Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
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committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
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Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and
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if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation,
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retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
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Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of
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the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
11
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w439
Exhibit 3.439
FILED
99 AUG 2 PM 3:54
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
[ILLEGIBLE]
ARTICLES OF INCORPORATION
DELTA SITE DEVELOPMENT CORP.
The undersigned incorporator, for the purpose of forming a corporation under the Florida
General Corporation Act, hereby adopts the following Articles of Incorporation.
ARTICLE I NAME
The name of the corporation is DELTA SITE DEVELOPMENT CORP.
ARTICLE II NATURE OF BUSINESS
This corporation may engage in or transact any or all lawful activities or business
permitted under the laws of the United States, the State of Florida, or any other state, county,
territory or nation.
ARTICLE III CAPITAL STOCK
The aggregate number of shares of stock and its par value that this corporation is
authorized to have outstanding at any one time is: Two Hundred, (200), all of which shall be
without par value.
ARTICLE IV TERMS OF EXISTENCE
This corporation is to exist
perpetually.
ARTICLE V OFFICERS DIRECTORS
The name and street address of the initial officer and director, if any, who shall hold
office the first year of the corporations existence or until his successor is elected, is:
ARTICLE VI PRINCIPAL MAILING ADDRESS
The principal mailing
address of the corporation shall be:
2075 North Powerline Road
Pompano Beach, Florida 33069
ARTICLE VII INCORPORATOR
The name and street address of the incorporator to this articles of incorporation is:
Lawrence A. Kirsch
90 State Street
Albany, New York 12207
IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of
Incorporation this 26th day of July, 1999.
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/s/ Lawrence A. Kirsch
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LAWRENCE A. KIRSCH |
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STATE OF NEW YORK)
COUNTY OF ALBANY ) SS.:
The foregoing instrument was acknowledged and sworn to me before this 26th day of July.
1999 by the incorporator of DELTA SITE DEVELOPMENT CORP.
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/s/ Wendy J. Henderson
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Notary Public |
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My Commission Expires: |
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WENDY J. HENDERSON
Notary Public, State of New York
No. 01HE5031008
Qualified in Albany County
Commission Expires July 25, 2000
exv3w440
Exhibit 3.440
AMENDED AND RESTATED BYLAWS
OF
DELTA SITE DEVELOPMENT CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of
Directors pursuant to a resolution adopted by a majority of the entire Board of Directors (whether
or not there exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption) or by the owner or owners, at the
time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten (10) (unless a longer period is required by law) nor more
than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
3
Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
6
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person (a) did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, (b) with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
11
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w441
Exhibit 3.441
[ILLEGIBLE]
ARTICLES OF INCORPORATION OF
DELTA WASTE CORP.
A FLORIDA CORPORATION
The undersigned, acting as incorporator of a Florida corporation under the Florida Business
Corporation Act, Chapter 607 of the Florida Statutes, hereby adopts the following Articles of
Incorporation for such Corporation:
ARTICLE I
NAME
The name of the Corporation is DELTA WASTE
CORP.
ARTICLE II
PRINCIPAL OFFICE AND MAILING ADDRESS
The address of the Corporations principal office is 3300 Northwest 27th Avenue, Pompano
Beach, Florida 33069, and the mailing address of the Corporation is 3300 Northwest 27th Avenue,
Pompano Beach, Florida 33069.
ARTICLE III
PURPOSE
The Corporation is organized for the purpose of
transacting any and all lawful business for which corporations may be incorporated under the laws of Florida.
1
ARTICLE IV
CAPITAL STOCK
The Corporation is authorized to issue ten thousand (10,000) shares of common stock, One and
00/100 Dollar ($1.00) par value per share.
ARTICLE V
INITIAL REGISTERED AGENT AND OFFICE
The name of the initial registered agent of the Corporation and the street address of
the initial registered office of the Corporation are as follows:
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Name |
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Address |
Patrick F. Marzano
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3300 Northwest 27th Avenue
Pompano Beach, Florida 33069 |
ARTICLE VI
INITIAL BOARD OF DIRECTORS
The Corporation shall have initially one director to hold office until the first annual
meeting of shareholders and until his successor shall have been elected and qualified, or until his
earlier resignation, removal from office or death. The number of directors may be either increased
or decreased from time to time in accordance with the
2
Bylaws of the Corporation. The name and address of the initial director of the Corporation are:
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Name |
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Address |
Patrick F. Marzano
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3300 Northwest 27th Avenue
Pompano Beach, Florida 33069 |
ARTICLE VII
INCORPORATOR
The name and address of the
person signing these Articles are:
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Name |
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Address |
Patrick F. Marzano
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3300 Northwest 27th Avenue
Pompano Beach, Florida 33069 |
ARTICLE VIII
AMENDMENTS
The power to amend these Articles of Incorporation in accordance with law is reserved to the
shareholders. Any right conferred upon any shareholder by these Articles of Incorporation is
subject to this reservation.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
3
Incorporation this 5 day of January, 1998.
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/s/ Patrick F. Marzano
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Patrick F. Marzano |
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|
|
INCORPORATOR
STATE OF FLORIDA )
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 5 day of January, 1999, by Patrick F. Marzano, who is personally known to me or who has
produced as identification and who did (did not) take an oath.
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/s/ Louis P.
Divita Name: LOUIS P. DIVITA
Notary Public
Serial No. CC590564
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|
My Commission Expires:
4
exv3w442
Exhibit 3.442
AMENDED AND RESTATED BYLAWS
OF
DELTA WASTE CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the state of incorporation, as the Board of Directors may
from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders,
the Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to
be taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
3
Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
4
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to
6
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Executive Vice President, or if there is no Executive Vice President, the
Vice President or the Vice Presidents if there are more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar other than the
Corporation or its employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5.
Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to
11
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section
3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w443
Exhibit 3.443
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Prescribed by J. Kenneth Blackwell
Please obtain fee amount and mailing instructions from
the Forms Inventory List (using the 3 digit form * located at
the bottom of this form). To obtain the Forms Inventory List
or for assistance, please call Customer Service:
Central Ohio: (614)-466-3910 Toll Free: 1-877-SOS-FILE
(l-877-767-3453)
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Expedite this form
þ Yes [ILLEGIBLE] |
ARTICLES OF INCORPORATION
(Under Chapter 1701 of the Ohio Revised Code)
Profit Corporation
The
undersigned, desiring to form a corporation, for profit, under
Sections 1701.01 et seq. of
the Ohio Revised Code, do hereby state the following:
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The name of said corporation shall be: Dempsey Waste Systems II, Inc. |
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SECOND. |
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The place in Ohio where its principal office is to be located is |
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Dayton ,
Montgomery
County, Ohio |
(city, village or township)
THIRD. |
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The purpose(s) for which this corporation is formed is: |
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to engage in any lawful act or activity for
which corporations may be formed under Section 17.01.01
et seq. of the Ohio Revised Code. |
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FOURTH. |
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The number of shares which the corporation is authorized to have outstanding
is: l,000 shares* |
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(Please state whether shares are common or preferred, and
their par value,
if any. Shares will be recorded is common with no par value unless otherwise
indicated.) |
IN
WITNESS WHEREOF, we have hereunto subscribed our names, on December 21, 2000
(date)
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Signature:
Name:
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/s/ Jo Lynn White
Jo Lynn White
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, Incorporator |
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Signature:
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, Incorporator |
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Name: |
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Signature:
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, Incorporator |
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Name: |
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* |
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of common stock, all of which shall have a par value of $0.01 per share. |
exv3w444
Exhibit 3.444
BYLAWS
OF
DEMPSEY WASTE SYSTEMS II, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the state of incorporation, as the Board of Directors may
from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten (10) (unless a longer period is required by law) nor more
than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders,
the Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to
be taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
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or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Executive Vice President, or if there is no Executive Vice President, the
Vice President or the Vice Presidents if there are more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar other than the
Corporation or its employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or
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destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be
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deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section
3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w445
Exhibit 3.445
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Mail to: Secretary of State |
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For office use only 001 |
Please include a typed
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Corporations Section |
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[ILLEGIBLE] |
self-addressed envelope
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1560 Broadway, Suite 200 |
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20001061799 C |
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Denver, CO 80202 |
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$ 65.00 |
MUST BY TYPED
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(303) 894-2251 |
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SECRETARY OF STATE |
FILING FEE: $50.00
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Fax (303) 894-2242 |
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03-27-2000 11:50:36 |
MUST SUBMIT TWO COPIES |
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ARTICLES OF INCORPORATION
Corporation
Name Denver RL North, Inc.
Principal
Business Address
15880
N. Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260
(Include City, State, Zip)
Cumulative voting shares of stock is authorized. Yes o No þ
If duration is less than perpetual enter number of years
Preemptive rights are granted to shareholders. Yes o No þ
Stock information: (If additional space is needed, continue on a separate sheet of paper.)
Stock
Class Common
Authorized Shares 1,000 Par Value $0.01
Stock Class Authorized Shares Par Value
The name
of the initial registered agent and the address of the registered office is: (If
another corporation, use last name space)
Last Name
The Corporation Company First & Middle Name
Street
Address 1675 Broadway, Denver, Colorado 80202
(Include City, State, Zip)
The undersigned consents to the appointment as the initial registered agent.
Signature of Registered Agent By: [ILLEGIBLE]
These articles are to have a delayed effective date of:
Incorporators: Names and addresses: (If more than two, continue on a separate sheet of paper.)
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NAME |
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ADDRESS |
Steven M. Helm
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15880 N. Greenway-Hayden Loop, Ste, 100, |
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Scottsdale, AZ 85260 |
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Incorporators who are natural persons must be 18 years or more. The undersigned,
acting as incorporator(s) of a corporation under the Colorado Business Corporation Act,
adopt the above Articles of Incorporation.
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Signature
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/s/ Steven M. Helm |
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Signature |
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* * * * *
STATEMENT
OF
SOLE INCORPORATOR
OF
DENVER RL NORTH, INC.
* * * * *
The articles of incorporation of this corporation having been filed in the office of the Secretary
of State of Colorado, the undersigned, being the sole incorporator named in said articles, does
hereby state that the following actions were taken on this day for the purpose of organizing this
corporation:
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1. |
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The following persons were elected as directors to hold office until the first
annual meeting of stockholders or until their respective successors are duly
elected and qualified: |
James Eng
Donald W. Slager
G. Thomas Rochford, Jr.
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The board of directors was authorized, in its discretion, to issue the shares of
the capital stock of this corporation to the full amount or number of shares
authorized by the articles of incorporation, in such amounts and for such
consideration as from time to time shall be determined by the board of directors
and as may be permitted by law. |
Dated: March 27, 2000.
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/s/ Steven M. Helm
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Steven M. Helm |
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Sole Incorporator |
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exv3w446
Exhibit 3.446
BYLAWS
OF
DENVER RL NORTH, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10.
Action by Written Consent. Any action required or permitted to be taken by
the stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or
by proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
9
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall
10
be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to
and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w447
Exhibit 3.447
Form 207 (reviled 9/03) Return in Duplicate to: Secretary of State P.O.
Box 13697 Austin, TX 78711-3697 FAX: 512/463-570? Filing Fee: $750 Certificate of Limited Partnership
Pursuant to Article 6l32a-l This space reserved for office use. FILED In the Office of the Secretary of
State of Texas OCT 24 2003 Corporations Section The name of the limited partnership
is as set forth below: Donna Development Co. TX, LP The name must come in the words
Limited Pittnmhip, or limited. or the abbreviation L.P., LP. or Ltd. as
the last words or letters of its name. The name must not be the turn as deceptively
similar to or similar to that of an existing corporate, limited liability company, or
limited partnership name on file with the secretary of state. A preliminary cheek for
name availability is recommended. The address of the principal office in the United
States where records of the partnership are to be kept or made available is set forth below:
15880 N Greenway-Hayden Loop, Suite 100 Street Address A. The initial registered agent
is an organization (cannot be partnership named above) by the name of: CT Corporation System
OR B. The initial registered agent is an individual resident of the state whose name is set forth
below: First Name M.I. Last Name Suffix C. The business address of the registered agent and the
registered office address is: Street Address City State Zip Code c/o C T Corporation System, 1021
Main Houston TX 77002 Street, Suite 1150 TX The name, mailing address, and the street address of
the business or residence of each general partner is as follows: General Partner Legal Entity: The
general partner is a legal entity named: Allied Waste Landfill Holdings, Inc. |
Individual; The general partner is an individual whose name is set forth below: First Name M.I. Last Name Suffix
MAILING ADDRESS OF GENERAL PARTNER 1 Mailing AddressCity State .. Zip Code 15880 N Greenway-Hayden
Loop, Sufee 100 Scoasdale Arizona 85260 STREET ADDRESS OF GENERAL PARTNER 1 Street AddressCity State
Zip Code 15880 N Greenway-Hayden Loop, Suite 100 Scoasdale Arizona 85260 General Partner Legal Entity: The
general partner is a legal entity named: Allied Waste Systems Holdings, Inc. Individual; The general partner is
an individual whose name is set forth below: Partner 2-First Name MI. Last Name Suffix MAILING ADDRESS OF GENERAL
PARTNER 2 Mailing AddressCity Sate Zip Code 15880 N Greenwgy-Hayden Loop, Suite 100 SeottsdaleArizona 85260 STREET
ADDRESS OF GENERAL PARTNER 2 Street AddressCity State Zip Code 15880 N Greenway-Hayden Loop, Suite 100 Scottsdale
Arizona 85260 OR B. This document will become effective at a later date, which is not more than ninety (90) days from the date of
its filing by the secretary of state. The delayed effective date is false or fraudulent document Allied Waste Landfill Holdings, Inc.
Allied Watte Systems Holdings, Inc. By its Vice President, Dale L. Parker By its Secretary, Jo Lynn White Name of General Partner
Name of General Partner 2 Signature of General Partner 1 Signature of General Partner 2 |
FILED
In the Office of the
Secretary of State of Texas
JUL 26 2005
Corporations Section
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
DONNA
DEVELOPMENT CO. TX, LP
Pursuant to the provisions of Section 2.02 of the Texas Revised Limited Partnership Act, the
undersigned limited partnership desires to amend its certificate of
limited partnership and for
that purpose submits the following certificate of amendment.
1. |
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The name of the limited partnership is Donna Development Co.
TX, LP. |
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2. |
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The certificate of limited partnership is amended as follows: |
The name of the limited partnership is Desarrollo del Rancho La Gloria TX, LP.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of
Limited Partnership on this 25th day of July, 2005.
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ALLIED WASTE LANDFILL
HOLDINGS, INC.
a Delaware corporation, Its General Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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FILED
In the Office of the
Secretary of State of Texas
OCT 03 2005
Corporations Section
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
DESARROLLO DEL RANCHO LA GLORIA TX, LP
Pursuant
to the provisions of Section 2.02 of the Texas Revised Limited Partnership Act, the
undersigned limited partnership desires to amend its certificate of limited partnership and for
that purpose submits the following certificate of amendment.
1. |
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The name of the limited partnership is Desarrollo Del Rancho
La Gloria TX, LP. |
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2. |
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The certificate of limited partnership is amended as follows: |
Section 4 of the Certificate of Limited Partnership is amended to read:
4.
General Partner Information: The name, mailing address, and street address of the business of
the general partner is: Allied Waste Landfill Holdings, Inc., 15880 N. Greenway-Hayden Loop, #100,
Scottsdale, Arizona 85260.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited
Partnership on this 3rd day of October, 2005.
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DESARROLLO DEL RANCHO LA GLORIA TX, LP |
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By: |
Allied Waste Landfill Holdings, Inc.,
a Delaware corporation, its general partner
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/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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exv3w448
Exhibit 3.448
AGREEMENT OF LIMITED PARTNERSHIP OF
DONNA DEVELOPMENT CO. TX, LP
This Agreement of Limited Partnership is entered into as of October 27, 2003, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and ALLIED
WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Donna Development Co. TX, LP The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted under
Texas law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Texas shall
be CT Corporation System, 1021 Main Street, Houston, County of Harris, Texas. The registered
office may be changed to any other place within the State of Texas by the General Partner, upon
written notice to the Limited Partner. The Partnership may maintain a registered office in any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Texas are CT Corporation System, 1021 Main
Street, Houston, Texas. The agent for service of legal process may be changed by the General
Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Texas, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Texas Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Texas.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
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2.4 Partner Loans. Upon the approval of the General Partner, any Partner may
make loans to the Partnership, which shall bear interest and be repaid on such reasonable terms
and conditions as may be approved by the General Partner. No Partner shall be required to make a
loan to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest
and reinvest Partnership funds for the purposes set forth in
Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
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5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
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(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
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10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court- appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Texas
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
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11.3 Construction. Every covenant, term and provision of this Agreement shall
be construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Texas Law. The laws of the State of Texas shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the rights and
duties of the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Texas Revised Uniform Limited Partnership Act, as set forth in Del. Code
Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in
accordance with Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and the net
fair market value of property (other than money) contributed to the Partnership by such Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., |
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Allied Waste Systems Holdings, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
Name:
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/s/ Donald W. Slager
Donald W. Slager
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By:
Name:
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/s/ Jo Lynn White
Jo Lynn White
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Its:
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President
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Limited Partner:
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$ |
990.00 |
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99 |
% |
Allied Waste Systems Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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exv3w449
Exhibit 3.449
(Please do not write in spaces belowfor Department use)
[ILLEGIBLE]
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MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU |
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FILED |
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EFFECTIVE DATE
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Michigan Department of Commerce
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Date Received |
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If different than date of filing:
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AUG 11 1980
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AUG 4 1980 |
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/s/ [ILLEGIBLE] |
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DIRECTOR |
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Corporation Number
2
1
7
-
8
0
1
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(SEE INSTRUCTIONS ON REVERSE SIDE)
ARTICLES OF INCORPORATION
(Domestic Profit Corporation)
These Articles of Incorporation are signed by the incorporator(s) for the purpose of forming a
profit corporation pursuant to the provisions of Act 284, Public Acts of 1972, as amended, as
follows:
ARTICLE I (See Part 1 of instructions on Page 4.)
The name of the corporation is DINVERNO, INC.
(See Part 2 of instructions on Page 4.)
(If space below is insufficient, continue on Page 3.)
ARTICLE II
The purpose or purposes for which the corporation is organized is to engage in any activity
within the purposes for which corporations may be organized under the Business Corporation Act of
Michigan.
ARTICLE III
The total authorized capital stock is:
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Common Shares 50,000
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Par Value Per Share
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$1.00 |
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1. |
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Preferred Shares
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Par Value Per Share
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$
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and/or shares without par value as follows (See Part 3 of instructions on Page 4.)
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Common Shares
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Stated Value Per Share
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$
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2. |
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Preferred Shares
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Stated Value Per Share
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$
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3. |
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A statement of all or any of the relative rights, preferences and limitations of the shares of
each class is as follows: |
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(If space below is insufficient, continue on Page 3.) |
Page 1
ARTICLE IV
1. The address of the initial registered office is: (See Part 4 of instructions on Page 4.)
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4696 Nevada
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Detroit
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Michigan 48234 |
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no. and street
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city
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zip |
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Mailing address of the initial registered office if different than above (See Part 4 of
instructions on Page 4.) |
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Michigan |
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p.o. box
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city
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The name of the initial resident agent at the registered office is: |
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Guido J. Dinverno |
ARTICLE V (See Part 5 of instructions on Page 4.)
The name(s) and address(es) of the incorporator(s) is (are) as
follows:
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Name |
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Residence or Business Address |
Guido J. Dinverno
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4696 Nevada, Detroit, Michigan 48234 |
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ARTICLE VI OPTIONAL (Delete Article VI if not applicable.)
When a compromise or arrangement or a plan of reorganization of this corporation is proposed
between this corporation and its creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of this corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of
creditors or of the shareholders or class of shareholders to be affected by the proposed
compromise or arrangement or reorganization, to be summoned in such manner as the court directs.
If a majority in number representing ¾ in value of the creditors or class of creditors, or of
the shareholders or class of shareholders to be affected by the proposed compromise or
arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of
this corporation as a consequence of the compromise or arrangement, the compromise or
arrangement and the reorganization, if sanctioned by the court to which the application has been
made, shall be binding on all the creditors or class of creditors, or on all the shareholders or
class of shareholders and also on this corporation.
ARTICLE VII OPTIONAL (Delete Article VII if not applicable.)
Any action required or permitted by this act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote thereon were present and
voted.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented in writing.
Page 2
(Use space below for continuation of previous Articles and/or for additional Articles.)
Please indicate which article you are responding to and/or insert any desired additional provisions
authorized by the act by adding additional articles here.
I (We), the incorporator(s) sign my (our) name(s) this 31st day of July 1980.
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GUIDO J. DINVERNO |
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/s/ Guido J. Dinverno |
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(INSTRUCTIONS ON PAGE 4) |
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MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
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CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
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Date Received |
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(FOR BUREAU USE ONLY) |
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Name Allied Waste Industries, Inc. |
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Address 15880 North Greenway/Hayden Loop |
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Suite 100 |
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Scottsdale |
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EFFECTIVE DATE: |
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ñDocument will be returned to the name and address you enter aboveñ
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
(Please read information and instructions on the last page)
Pursuant
to the provisions of Act 284, Public Acts of 1972 (profit corporations), or Act 162,
Public Acts of 1982 (nonprofit corporations), the undersigned corporation executes the following
Certificate:
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The present name of the corporation is: Dinverno, Inc. |
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The identification number assigned by the Bureau is: 217801 |
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The location of the registered office is: |
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4600 Nevada |
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Detroit |
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Michigan 48234 |
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Article IV of the Articles of Incorporation is hereby amended to read as follows: |
Resident Agent:
The Corporation Company
30600 Telegraph Road
Bingham Farms, MI 48025
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(For amendments adopted by unanimous consent of
incorporators before the first meeting of
the board of directors or trustees.) |
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The foregoing amendment to the Articles of Incorporation was duly adopted on
the day of , 19
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in accordance with the provisions of the Act by the unanimous consent of the incorporator(s)
before the first meeting of the Board of Directors or Trustees. |
Signed this
day of , 19
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(Signature) |
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(Signature) |
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(For profit corporations, and for nonprofit corporations whose articles state the corporation
is organized on a stock or on a membership basis.) |
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The foregoing amendment to the Articles of Incorporation was duly adopted on the 1 day of
June, 1998 by the shareholders if a profit corporation, or by the shareholders or members if a
nonprofit corporation (check one of the following) |
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at a meeting. The necessary votes were cast in favor of the amendment. |
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by written consent of the shareholders or members having not less than the minimum
number of votes required by statute in accordance with Section 407(1) and (2) of the Act if a
nonprofit corporation, or Section 407(1) of the Act if a profit corporation. Written notice
to shareholders or members who have not consented in writing has been given. (Note: Written
consent by less than all of the shareholders or members is permitted only if such provision
appears in the Articles of Incorporation.) |
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by written consent of all the shareholders or members entitled to vote in
accordance with section 407(3) of the Act if a nonprofit corporation, or Section 407(2) of
the Act if a profit corporation. |
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Signed this 1st day of June, 1998 |
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By |
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/s/ Thomas K. Kehoe |
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(Signature of President, Vice-President, Chairperson or Vice-Chairperson) |
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Thomas K. Kehoe |
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Authorized Agent |
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Type or Print Name) |
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exv3w450
Exhibit 3.450
AMENDED AND RESTATED BYLAWS
OF
DINVERNO, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined
to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
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Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
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office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or within the state of incorporation. Regular meetings
of the Board of Directors may be held without notice at such time and at such place as may from
time to time be determined by the Board of Directors. Special meetings of the Board of Directors
may be called by the Chairman, if there is one, the President or any two (2) directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by telephone, electronic
facsimile or telegram, not less than twenty-four (24) hours before the date of the meeting, or on
such shorter notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, as the same may be amended from time to time or
limited by applicable state law, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
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Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
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ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
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executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it
8
may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the
9
time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this
Article VIII, the
10
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without
11
the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section
5
. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
12
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
13
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding
capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
14
exv3w451
Exhibit 3.451
APPROVED
AND
FILED
SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
DTC MANAGEMENT, INC.
The undersigned incorporator or incorporators, desiring to form a corporation
(hereinafter referred to as the Corporation) pursuant to the provisions of the Indiana Business
Corporation Law, as amended (hereinafter referred to as the Act) execute the following Articles
of Incorporation:
[ILLEGIBLE]
ARTICLE I
Name
The name of the Corporation is:
DTC Management, Inc.
ARTICLE II
Purposes
1. The purpose for which the Corporation is formed is to transact any and all
lawful business for which corporations may be incorporated under the Act.
2. Subject to any limitation or restriction imposed by the Act, any other law, or
any provisions of these Articles of Incorporation, the Corporation shall have the power:
(a) To do all acts and things necessary, convenient, expedient, or incidental to
the carrying out of any of the purposes set out herein.
(b) To lease, purchase, license or in any way acquire grounds, premises, space
or real estate reasonably necessary or convenient for the conduct of the business of
the Corporation; to purchase, sell, assign, lease, license, mortgage or in any way
grant interests in real estate to any person, firm or Corporation upon such terms as
may be deemed beneficial to the Corporation.
(c) To buy, purchase, own, acquire, rent or in any way obtain any interest in
any products, goods, supplies, equipment, buildings, items or raw materials
necessary or convenient for the conduct of the business of the Corporation.
(d) To acquire and pay for in cash, stock, bonds, debentures, or any other
property of this Corporation, the stock, bonds, debentures or securities of other
corporations, persons, associations, or State and Federal or foreign governments, including good
will, franchise rights, assets and property, and to undertake or assume the whole or any part of
the obligations or liabilities of any person, firm, association, or corporation.
(e) To guarantee, acquire in any manner, purchase, hold, own, sell, assign,
transfer, mortgage, pledge or otherwise dispose of shares of the capital stock of,
or any bonds, securities, or evidence of indebtedness of any other corporation or
corporations, association or associations, person or persons, domestic or foreign,
or of any other state, territory, or nation, including The United States, and while
the owner thereof to exercise all of the rights, powers and privileges of ownership,
including the right to vote, receive dividends, however declared or in whatever
property to be paid, and to enter into any agreement with respect thereto.
(f) To purchase, take, receive or otherwise acquire, hold, own, pledge,
transfer or otherwise dispose of the shares of this Corporation either directly or
indirectly but only insofar as permitted by the laws of the State of Indiana under
which this Corporation is organized and any amendments thereto.
(g) To issue bonds, debentures or obligations of this Corporation from time to
time for any of the objects or purposes of the Corporation and to secure the same
by mortgage, pledge, deed of trust, or otherwise.
(h) To have one or more offices or distributing agencies in the State of Indiana, or in any
other state, territory, or nation, to carry on all or any of its operations and business without
restriction or limit as to location or amount, and to acquire by purchase or otherwise, and to
dispose of real estate and personal property of every description wheresoever located insofar as
permitted by law.
(i) To enter into partnerships or joint ventures for carrying on any lawful business or to act
as agent or representative of others for any lawful business purpose, or to provide service through
its agents or employees, or through the use of independent contractors to the public for profit.
(j) To, in general, carry on any other business in connection with the foregoing, whether
manufacturing, selling, or otherwise and, without being limited by the foregoing, to have and
exercise all of the powers conferred by law on corporations formed under the Act hereinabove
referred to, or any amendments, alterations or substitutions thereto, and to have and do any and
all of the things, to the same extent as natural persons might or could do, insofar as permitted by
the laws of the State of Indiana and/or of any other state or territory wherein such business is
done.
2
ARTICLE III
Period of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Resident Agent and Principal Office
Section 1. Resident Agent. The name and address of the Corporations Resident Agent
for service of process is:
Gregory L. Gibson
3200 E. Haythorne Avenue
Terre Haute, IN 47805
Section 2. Principal Office. The post office address of the principal office of the
Corporation is:
3200 E. Haythorne Avenue
PO Box 478
Terre Haute, IN 47808
ARTICLE V
Authorized Shares
Section 1. Number of Shares. The total number of shares which the Corporation is
to have authority to issue is one thousand ( 1,000 ) without par value.
Section 2. Designation of Classes. All the authorized shares of the Corporation shall
be of one class only and be designated common stock. The common stock of the Corporation shall in
all other respects entitle the holder to the same rights and preferences, and subject the holder to
the same qualifications, limitations and restrictions as all other shareholders of common stock.
Section 3. Issuance and Consideration. The common stock may be issued for such an
amount of consideration as may be fixed from time to time by the Board of Directors.
Section 4. Voting Rights. At all times each holder of a share of a common stock
shall be entitled to cast one vote for each share of such stock standing in the shareholders
3
name on the Corporations books on matters of the Corporation upon which the shareholder
is entitled to vote.
Section 5. Dividends. The Board of Directors shall have the power to declare and pay
dividends on the outstanding shares of common stock to the extent permitted by the Act.
Section 6. Dissolution. In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the holders of the shares of common stock shall be
entitled, after due payment or provision for payment of the debts and other liabilities of the
Corporation, to share ratably in the remaining net assets of the Corporation.
Section 7. Pre-emptive Rights. Shareholders shall have no pre-emptive rights to
subscribe to or purchase any shares of Common Stock or other securities of the Corporation.
Section 8. Re-acquire Shares. Shares acquired by the Corporation shall be deemed
authorized but unissued shares.
ARTICLE VI
Director(s)
Section 1. Number of Directors. The initial Board of Directors is composed of one
member. The number of directors may be from time to time fixed by the By-Laws of the Corporation at
any number. In the absence of a By-Laws fixing the number, the number of directors shall be one.
Section 2. Names and Post Office Addresses of the Directors. The name and post office
address of the initial Board of Directors of the Corporation is:
Gregory L. Gibson
3200
Haythorne Avenue
PO Box 478
Terre Haute, IN 47808
Section 3. Qualifications of Directors Directors need not be shareholders of the
Corporation. (I.C. 23-1-33-2)
4
ARTICLE VII
Incorporator(s)
The name(s) and post office address(es) of the incorporator(s) of the Corporation
are:
Gregory L. Gibson
3200 E. Haythorne Avenue
PO Box 478
Terre Haute, IN 47808
ARTICLE VIII
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Every person who is or was a Director, Officer or employee of the Corporation shall be
indemnified by the Corporation against all liability and reasonable expense incurred by such person
in his or her official capacity, provided that such person is determined in the manner specified in
Indiana Code Section 23-1-37-12 (as that section may be amended from time to time) to have met the
standard of conduct specified in Indiana Code Section 23-1-37-8 (as that section may be amended
from time to time). Upon demand for such indemnification, the Corporation shall proceed as provided
in Indiana Code Section 23-1-37-12 (as that section may be amended from time to time) to determine
whether such person is entitled to indemnification. Nothing contained in this section shall limit
or preclude the exercise of any right relating to indemnification of or advance of expenses to any
Director, Officer, employee or agent of the Corporation or the ability of the Corporation to
otherwise indemnify or advance expenses to any Director, Officer, employee or agent.
Any contract or other transaction between the Corporation and one or more of its Directors, or
between the Corporation and any firm of which one or more of its Directors are members or
employees, or in which they are interested, or between the Corporation and any corporation,
partnership or association of which one or more of its Directors are shareholders, members,
directors, officers, employees, or in which they are interested, or in which the Corporation is a
member, shareholder, or otherwise interested, shall be valid for all purposes, notwithstanding the
presence of such Director or Directors at the meeting of the Board of Directors of the Corporation
which acts upon, or in reference to, such contract or transaction and notwithstanding his or their
participation in such action, if the fact of such interest shall be disclosed or known to the Board
of Directors and the Board of Directors shall, nevertheless, authorize, approve or ratify such
contract or transaction, by a vote of a majority of the disinterested Directors present,
notwithstanding the fact that such majority of the disinterested Directors present may not
constitute a quorum, a majority of the Board of Directors, or a majority of the Directors present
at the meeting at which the contract or transaction is considered, this section shall not be
construed to invalidate any contract or other transaction which would otherwise be valid under the
common and statutory law applicable thereto.
5
The Board of Directors of the Corporation shall have power, without the assent or vote of the
Shareholders, to make, alter, amend or repeal the Code of By-Laws of the Corporation, but the
affirmative vote of a number of Directors equal to a majority of the number who would constitute a
full Board of Directors at the time of such action shall be necessary to take any action for the
making, alteration, amendment or repeal of the Code of By-Laws.
I hereby verify subject to penalties of perjury that the facts contained herein are
true.
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/s/ Gregory L. Gibson
Gregory L. Gibson, Incorporator
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COUNTY OF
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Subscribed and sworn to before me the undersigned Notary Public in and for said
County and State this [ILLEGIBLE] day of [ILLEGIBLE], 1999.
Witness my hand and Notarial Seal.
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This instrument prepared by /s/ Jeffry A. Lind,
Jeffry A. Lind
COX, ZWERNER, GAMBILL & SULLIVAN, P.O. Box 1625, Terre Haute, IN 47808-1625.
6
exv3w452
Exhibit 3.452
AMENDED AND RESTATED BYLAWS
OF
DTC MANAGEMENT, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined
to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
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Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
3
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
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Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
5
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
6
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
7
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it
8
may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the
9
time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
10
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without
11
the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
12
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
13
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
14
exv3w453
Exhibit 3.453
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 12/14/2000
001627751 3330548
CERTIFICATE OF FORMATION
OF
E
LEASING COMPANY, LLC
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Name. The name of the limited liability company is E
Leasing Company, LLC. |
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Registered Office and Agent. The address of its registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of its
registered agent at such address is Corporation Service Company. |
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Authorized Person. The name and address of the authorized person is Richard B.
Goldstein, Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York
10004. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of E Leasing
Company, LLC this 14th day of December, 2000.
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/s/ Richard B. Goldstein
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Richard B. Goldstein |
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Authorized Person |
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CERTIFICATE OF AMENDMENT
OF
E LEASING COMPANY, LLC
1. The name of the limited liability company is E Leasing Company, LLC.
2. The Certificate of Formation of the limited liability
company is hereby amended as follows:
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent
at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment
of E Leasing Company, LLC this
15th day of February, 2001.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation,
Sole Member
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By: |
/s/ Steven M. Helm
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Steven M. Helm |
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Vice President, Legal |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 03/01/2001
010104716 3330548
exv3w454
Exhibit 3.454
Admission of Substituted Member
Reference is made to the Limited Liability Company Agreement of E Leasing Company, LLC, a
Delaware limited liability company, dated as of April 30, 2001 (the Agreement), by and among
American Ref-Fuel Company of Essex County, a New Jersey general partnership (Transferor Member)
and Allied Waste North America, Inc., a Delaware corporation (the Manager). On the date hereof,
Transferor Member transferred its Interest (as defined in the Agreement) in E Leasing Company, LLC
to BFI Energy Systems of Essex County, Inc., a New Jersey corporation (the Transferee). Terms not
defined herein shall have the meaning given such terms in the Agreement.
Pursuant to Section 10.6 of the Agreement, the Manager hereby consents to the admission of the
Transferee to E Leasing Company, LLC and confirms that all requirements set forth in the Agreement
for the admission of this substituted member have been complied with or otherwise waived.
The Transferee hereby becomes a party to the Agreement and hereby accepts and assumes all
rights and obligations of the Transferor Member with respect to the Transferred Interest (as
defined in the Agreement) set forth therein.
Dated: April 30, 2002
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BFI ENERGY SYSTEMS OF ESSEX COUNTY, INC. |
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By:
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/s/ Dale L. Parker |
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Name:
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DALE L. PARKER |
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Title:
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VICE PRESIDENT |
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Acknowledged and agreed: |
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ALLIED WASTE NORTH AMERICA, INC. |
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By:
Name:
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/s/ Thomas P. Martin
THOMAS P. MARTIN
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Title:
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TREASURER |
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456035
LIMITED LIABILITY COMPANY AGREEMENT
OF E LEASING COMPANY, LLC
By and Among
AMERICAN REF-FUEL COMPANY
OF ESSEX COUNTY
and
ALLIED WASTE NORTH AMERICA, INC.
as Members,
and Managers
THE INTERESTS (AS DEFINED HEREIN) HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS AND NEITHER
THE INTERESTS NOR ANY BENEFICIAL INTEREST THEREIN MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (OTHER THAN AS A RESULT OF EXERCISE OF THE PUT OPTION OR THE CALL OPTION (AS DEFINED
HEREIN)) EXCEPT UPON DELIVERY TO THE COMPANY OF A TRANSFEROR CERTIFICATE AND A TRANSFEREE
CERTIFICATE AS HEREIN PROVIDED AND AS PERMITTED BY THE FOLLOWING SENTENCES. EACH MEMBER (AS DEFINED
HEREIN), BY ITS EXECUTION OF THIS AGREEMENT (AS DEFINED HEREIN), REPRESENTS, ACKNOWLEDGES AND
AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER ITS INTEREST EXCEPT (A)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE AND, IF REQUESTED
BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY); (B)
TO THE COMPANY OR ITS AFFILIATES; OR (C) PURSUANT TO THE EXERCISE OF THE PUT OPTION OR THE CALL
OPTION, AS THE CASE MAY BE, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION.
TABLE OF CONTENTS
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ARTICLE I THE COMPANY
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1 |
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1.1 Formation
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1.2 Name
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1.3 Purposes; Powers
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1.4 Principal Place of Business
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1.5 Term
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1.6 Filings; Agent for Service of Process
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1.7 Title to Properties
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1.8 Payments of Individual Obligations
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1.9 Independent Activities; Transactions with Affiliates
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1.10 Definitions
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1.11 Other Terms
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14 |
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ARTICLE II MEMBERS CAPITAL CONTRIBUTIONS
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15 |
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2.1 Capital Contributions
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ARTICLE III ALLOCATIONS
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3.1 Profits
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3.2 Losses
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3.3 Special Allocations
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3.4 Curative Allocations
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3.5 Other Allocation Rules
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3.6 Tax Allocations: Code Section 704(c)
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ARTICLE IV DISTRIBUTIONS
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4.1 Distributions
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4.2 Amounts Withheld
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4.3 Limitations on Distributions
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ARTICLE V MANAGEMENT
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5.1 The Manager
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5.2 Restrictions on Authority of the Manager
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22 |
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5.3 Special Provisions Following Occurrence of Bankruptcy of Manager
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5.4 Duties and Obligations of the Manager and the Special Purpose Manager
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5.5 Management Fee/Expenses
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ARTICLE VI ROLE OF MEMBERS
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6.1 Rights or Powers
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6.2 Meetings of the Members
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6.3 Withdrawal/Resignation
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6.4 Member Compensation
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6.5 Members Liability
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6.6 Partition
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6.7 Transactions Between a Member and the Company
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6.8 Other Instruments
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6.9 Other Covenants
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ARTICLE VII INDEMNIFICATIONS
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7.1 Indemnification of the Company, the Managers and the Members
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7.2 Indemnification Procedures
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ARTICLE VIII ACCOUNTING, BOOKS AND RECORDS
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8.1 Accounting, Books and Records
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8.2 Reports
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8.3 Tax Matters
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ARTICLE IX AMENDMENTS
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9.1 Amendments
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ARTICLE X TRANSFERS
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10.1 Restrictions on Transfers
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10.2 Permitted Transfers
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10.3 Conditions to Permitted Transfers
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10.4 Prohibited Transfers
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10.5 Rights of Unadmitted Assignees
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10.6 Admission of Substituted Members
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10.7 Distributions and Allocations in Respect of Transferred Interests
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ARTICLE XI [Intentionally deleted]
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39 |
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ARTICLE XII DISSOLUTION AND WINDING UP
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12.1 Dissolution Events
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12.2 Winding Up
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12.3 Alternative Methods of Distributions
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12.4 Rights of Members
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12.5 Notice of Dissolution/Termination
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12.6 Allocations During Period of Liquidation
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12.7 Character of Liquidating Distributions
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12.8 The Liquidator
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12.9 Form of Liquidating Distributions
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ARTICLE XIII
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CERTAIN REPRESENTATIONS AND COVENANTS
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ARTICLE XIV MISCELLANEOUS
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14.1 Notices
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14.2 Binding Effect
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14.3 Construction
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14.4 Headings
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14.5 Severability
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14.6 Incorporation by Reference
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14.7 Governing Law
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14.8 Waiver of Jury Trial
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14.9 Counterpart Execution
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14.10 Specific Performance
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14.11 Consent to Jurisdiction
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14.12 Nature of Interest
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48 |
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Exhibit A-1 Form of Transferor Certificate
Exhibit A-2 Form of Transferee Certificate
Exhibit B Form of Capital Expenditures/In-Service Dates
Exhibit C Form of Master Lease
- iii -
LIMITED LIABILITY COMPANY AGREEMENT
OF
E LEASING COMPANY, LLC
This LIMITED LIABILITY COMPANY AGREEMENT of E Leasing Company, LLC; is entered into and shall
be effective as of April 30, 2001, by and among American Ref-Fuel Company of Essex County, a New
Jersey general partnership (the Ref-Fuel Company)
and Allied Waste North America, Inc., a
Delaware company (AWP), each of which has executed this Agreement as a Member and as the Manager
and the Special Purpose Manager, respectively, on the following terms and conditions:
ARTICLE I
THE COMPANY
1.1 Formation.
The Company has been formed on December 14, 2000, upon the filing of the Certificate with the
Secretary of State of the State of Delaware. The rights and liabilities of the Members and Managers
shall be as provided under the Act, the Certificate and this Agreement.
1.2 Name.
The
name of the Company is E Leasing Company, LLC and all business of the Company shall be
conducted in such name. The Manager may change the name of the Company upon ten (10) Business Days
notice to the Members; provided that the name of the Company shall not include or be substantially
similar to the name of any Member or any Affiliate of any Member.
1.3 Purposes; Powers.
(a) The purposes of the Company are limited solely (i) to acquiring,
owning, leasing, managing, conserving, maintaining, protecting, servicing and selling,
transferring, pledging or hypothecating or otherwise dispose of investments in Garbage Trucks and
Other Assets which, when held by the Company shall be held by the Company solely for lease to third
parties, and (ii) to engaging in activities incidental to the purposes set forth in clause (i).
- 1 -
(b) In connection with Section 1.3(a)(i), the Company will enter into binding commitments to
purchase assets consistent with the dollar amounts and in service dates shown in Exhibit B.
(c) The Company has the power to do any and all acts necessary, appropriate, proper,
advisable, incidental or convenient to or in furtherance of the purposes of the Company set forth
in Section 13(a) and has, without limitation, any and all powers that may be exercised on behalf of
the Company by any Manager pursuant to Article V hereof.
1.4 Principal Place of Business.
The principal place of business of the Company is at 15880 North Greenway-Hayden Loop, Suite
100, Scottsdale, Arizona 85260. The Manager may change the principal place of business of the
Company to any other place upon ten (10) Business Days notice to the Members. The registered office
of the Company in the State of Delaware initially is located at Corporation Service Company, 2711
Centerville Road, Wilmington, New Castle County, Delaware 19808.
1.5 Term.
The term of the Company commenced on the date the Certificate is filed in the office of the
Secretary of State of the State of Delaware in accordance with the Act and shall continue until the
winding up and liquidation of the Company and its business are completed following a Dissolution
Event, as provided in Article XII.
1.6 Filings; Agent for Service of Process.
(a) The Certificate of the Company has been filed in the office of the Secretary of State of
the State of Delaware in accordance with the Act. The Manager shall take any and all other actions
reasonably necessary to perfect and maintain the status of the Company as a limited liability
company under the laws of the State of Delaware, including the preparation and filing of such
amendments to the Certificate and such other assumed name certificates, documents, instruments and
publications as may be required by law, including, without limitation, action to reflect a
correction of false or erroneous statements in the Certificate or the desire of the Members to make
a change in any statement therein in order that it shall accurately represent the agreement among
the Members.
(b) The Members and the Manager shall execute and cause to be filed original or amended
certificates and shall take any and all other actions as may be reasonably necessary to perfect and
maintain the status of the Company as a limited liability company or similar type of entity under
the laws of any other jurisdictions in which the Company engages in business.
- 2 -
(c) The registered agent for service of process on the Company in the State of Delaware shall
be Corporation Service Company, 2711 Centerville Road, Wilmington, New Castle County, Delaware
19808 or any successor as appointed by the Manager.
(d) Upon the dissolution and completion of the winding up and liquidation of the Company in
accordance with Article XII, the Manager shall promptly execute and cause to be filed a Certificate
of Cancellation in accordance with the Act and the laws of any other jurisdictions in which the
Manager deems such filing necessary or advisable.
1.7 Title to Properties.
All Properties owned by the Company shall be owned by the Company as an entity and no
Member shall have any ownership interest in such Properties in its individual name, and each
Members interest in the Company shall be personal property for all purposes. At all times after
the Effective Date, the Company shall hold title to all of its Properties in the name of the
Company and not in the name of any Member.
1.8 Payments of Individual Obligations.
The Companys credit and assets shall be used solely for the benefit of the
Company, and no asset of the Company shall be Transferred or encumbered for or in payment of
any individual obligation of any Member.
1.9 Independent Activities; Transactions with Affiliates.
(a) The Manager shall be required to devote such time to the affairs of the Company as
may be necessary to manage and operate the Company, and the Manager and the Special Purpose Manager
shall be free to serve any other Person or enterprise in any capacity whether or not any such
activity may be competitive or in conflict with the interests of the Company.
(b) Each Member acknowledges that each Manager, each Member and the Affiliates of each of them
are free to engage or invest in an unlimited number of activities or businesses, any one or more of
which may be related to the activities or businesses of the Company or competitive or in conflict
with the interests of the Company, without having or incurring any obligation to offer any interest
in such activities or businesses to the Company or any Member, and neither this Agreement nor any
activity undertaken pursuant hereto shall prevent any Member or Manager or their Affiliates from
engaging in such activities, or require any Member or Manager to permit the Company or any Manager
or Member or its Affiliates to participate in any such activities, and as a material part of the
consideration for the execution of this Agreement by each Member, each Member hereby waives,
relinquishes, and renounces any such right or claim of participation.
- 3 -
(c) To the extent permitted by applicable law and subject to the provisions of this
Agreement, the Manager is hereby authorized to cause the Company to purchase Properties from, sell
Properties to or otherwise deal with the Manager acting on its own behalf, any Member or any
Affiliate of the Manager or any Member; provided (i) any affiliate transaction that relates to
purposes set forth in Section 1.3(a)(i) shall be on terms no less favorable to the Company than
those that would have been entered into with unrelated third parties; and (ii) any affiliate
transactions other than those set forth in clause (i) above, shall not be entered into without the
consent of the Special Purpose Manager.
1.10 Definitions.
Capitalized words and phrases used in this Agreement have the following meanings:
Accredited Investor means a Person that is an accredited investor as defined in Rule
501(a)(l), (2) or (3) under Regulation D of the Securities Act.
Act means the Delaware Limited Liability Company Act, 6 Del. C. § 18-10 1, et seq., as
amended from time to time (or any corresponding provisions of succeeding law).
Adjusted Capital Account Deficit means, with respect to any Member, the deficit balance, if
any, in such Members Capital Account as of the end of the relevant Allocation Year, after giving
effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is obligated to
restore pursuant to any provision of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences in Sections 1.704-2(g)(l) and 1.704-2(i)(5) of the
Regulations; and
(ii) Debit to such Capital Account the items described in Sections
1.704-l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5) and 1.704-1
(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of Section 1.704-l(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
Affiliate means, with respect to any Person, an affiliate within the meaning of Rule 12b-2
of the Securities Exchange Act of 1934, as amended; provided, however, that unless the context
specifically required a contrary interpretation, Ref-Fuel Company shall not be deemed to be an
Affiliate of Duke/UAE, Allied or any of their respective Affiliates.
- 4 -
Agreement means this Limited Liability Company Agreement of E Leasing Company, LLC, as
amended, supplemented or otherwise modified from time to time. All references in this Agreement to
Section or Sections are to a section or sections of this Agreement unless otherwise specified.
Allocation Year means (i) the period commencing on the Effective Date and ending on December
31, 2000, (ii) any subsequent twelve (12) month period commencing on January 1 and ending on
December 31 or (iii) any portion of the period described in clauses (i) or (ii) for which the
Company is required to allocate Profits, Losses and other items of Company income, gain, loss or
deduction pursuant to Article III.
Bankruptcy means, with respect to any Person, a Voluntary Bankruptcy or an Involuntary
Bankruptcy. A Voluntary Bankruptcy means, with respect to any Person (i) an admission in writing
by such Person of its inability to pay its debts generally or a general assignment by such Person
for the benefit of creditors, (ii) the filing of any petition or answer by such Person seeking to
adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of such Person or its
debts under any present or future bankruptcy, insolvency or similar statute, law or regulation, or
seeking, consenting to, or acquiescing in the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for such Person or for any substantial part
of its Properties or (iii) action taken by such Person to authorize any of the actions set forth
above. An Involuntary Bankruptcy means, with respect to any Person, without the consent or
acquiescence of such Person, the entering of an order for relief or approval of a petition for
relief or reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other similar relief under any present or
future bankruptcy, insolvency or similar statute, law or regulation, or the filing of any such
petition against such Person which petition shall not be dismissed within ninety (90) days, or
without the consent or acquiescence of such Person, the entering of an order for relief or the
appointment of a trustee, custodian, receiver or other similar official of such Person or of all or
any substantial part of the Properties of such Person which order shall not be dismissed within
ninety (90) days. The Members hereby agree that this definition shall supersede the definition of
bankruptcy set forth in Section 18-304 of the Act for all purposes of this Agreement.
Business Day means a day of the year except Saturday, Sunday or any other day on which
commercial banks are not required or authorized by law to close in the states of New York,
Arizona, New Jersey or Texas.
Call Option means the Partnership Call (as defined in the Second Amended and Restated
Partnership Agreement of American Ref-Fuel Company of Essex County, dated as of April 30,
2001).
- 5 -
Capital Account means, with respect to any Member, the Capital Account maintained for
such Member in accordance with the following provisions:
(i) To each Members Capital Account there shall be credited (A) such Members
Capital Contributions, (B) such Members distributive share of Profits and any items in the
nature of income or gain which are specially allocated pursuant to Section 3.3 or Section
3.4, and (C) the amount of any Company liabilities assumed by such Member or which are
secured by any Properties distributed to such Member;
(ii) To each Members Capital Account there shall be debited (A) the amount of
money and the Gross Asset Value of any Properties distributed to such Member pursuant to any
provision of this Agreement, (B) the amount of any liabilities of such Member which have
been assumed by the Company or which are secured by any properties contributed by the Member
to the Company and (C) such Members distributive share of Losses and any items in the
nature of expenses or losses which are specially allocated pursuant to Section 3.3 or
Section 3.4;
(iii) In the event all or any portion of an Interest is Transferred in accordance
with the terms of this Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the Transferred Interest; and
(iv) In determining the amount of any liability for purposes of subparagraph (i)
above, there shall be taken into account Code
Section 752(c) and any other applicable
provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-l(b), and
shall be interpreted and applied in a manner consistent with such Regulations. In the event the
Manager shall determine that it is necessary to modify the manner in which the Capital Accounts, or
any debits or credits thereto (including, without limitation, debits or credits relating to
liabilities which are secured by contributed or distributed property or which are assumed by the
Company or any Members), are computed in order to comply with such Regulations, the Manager may
make such modification; provided that it shall not affect the amounts distributable to any Person
under this Agreement. The Manager also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Members and the amount of
capital reflected on the Companys balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-l(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with Regulations Section
1.704-l(b); provided that such adjustments under clause (i) or
- 6 -
modifications under clause (ii) shall not affect the amounts distributable to any Person under this
Agreement.
Capital Contributions means, with respect to any Member, the amount of money or the Gross
Asset Value of other Property contributed to the Company with respect to the Interest in the
Company held or purchased by such Member.
Certificate means the certificate of formation filed with the Secretary of State of the
State of Delaware pursuant to the Act to form the Company, as originally executed and amended,
modified, supplemented or restated from time to time, as the context requires.
Certificate of Cancellation means a certificate filed in accordance with 6 Del.
C.§ 18-203.
Code means the United States Internal Revenue Code of 1986, as amended from time to time.
Company means, E Leasing Company, LLC and the limited liability company continued hereunder
and continuing the business of this Company in the event of dissolution of the Company as herein
provided if the Members elect to reconstitute pursuant to Section 12.1(b).
Company Minimum Gain has the meaning given the term partnership minimum gain in
Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
Credit Agreement means the Credit Agreement dated as of April 30, 2001, among the Company,
the other Credit Parties signatory thereto, GECC, as lender, and as agent for Lenders, and the
other Lenders signatory thereto from time to time.
Damages means any and all judgments, damages or penalties with respect to, or amounts paid
in settlement of, claims (including, but not limited to negligence, strict or absolute liability,
liability in tort and liabilities arising out of violation of laws or regulatory requirements of
any kind), actions, or suits, and, to the extent suffered or incurred in connection with the
foregoing, taxes (including, without limitation, taxes on any indemnification payments and
including interest, additions to tax and penalties), liabilities, obligations, and reasonable
costs, expenses and disbursements (including, without limitation, reasonable legal fees and
expenses).
Debt of any Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind (except deposits and advances in
the ordinary course of business), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such
- 7 -
Person under conditional sale or other title retention agreements relating to property or assets
purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred
purchase price of property or services (other than accounts payable incurred in the ordinary course
of business and paid when due), (f) all Debt of others secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property owned
or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such Person, and (h) all other obligations of such Person which have the same
effect as any of the foregoing.
Deemed
Refund has the meaning set forth in Section 7.2(e).
Depreciation means, for each Allocation Year, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an asset for such
Allocation Year, except that (x) with respect to any asset whose Gross Asset Value differs from its
adjusted tax basis for federal income tax purposes and which difference is being eliminated by use
of the remedial method defined by Regulations Section 1.704-3(d), Depreciation for such
Allocation Year shall be the amount of book basis recovered for such Allocation Year under the
rules prescribed by Regulations Section 1.704-3(d)(2), and (y) with respect to any other asset
whose Gross Asset Value differs from its adjusted basis for federal income tax purposes at the
beginning of such Allocation Year, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such Allocation Year bears to such beginning adjusted tax basis;
provided, however, that if the adjusted basis for federal income tax purposes of an asset at the
beginning of such Allocation Year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Tax Matters Member.
Dissolution Event has the meaning set forth in Section 12.1.
Economic Interest means any interest in the capital or profits of the Company (including,
without limitation, any Interest) or any financial instrument or contract the value of which is
determined in whole or in part by reference to the Company.
Effective Date means the date hereof.
Financing means the financing transaction contemplated in the Credit Agreement
and the Security Agreement.
Fiscal Year means (i) the period commencing on the Effective Date and ending on December 31,
2000, (ii) any subsequent twelve-month period commencing on January 1 and ending on December 31 and
(iii) the period commencing on the
- 8 -
immediately preceding January 1 and ending on the date on which all the Properties are distributed
to the Members pursuant to Section 12.2.
GAAP means generally accepted accounting principles in effect in the United States of
America from time to time.
Garbage Trucks means the municipal solid waste collection or disposal vehicles (garbage
trucks) purchased by the Company from time to time and any replacements or substitutions therefor
in accordance with the Lease.
GECC means General Electric Capital Corporation.
Gross Asset Value means with respect to any asset, the assets adjusted basis for federal
income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Member to the
Company will be the gross fair market value of such asset as determined pursuant to
sub-paragraph (iv) below;
(ii) The Gross Asset Values of all Company assets shall be adjusted to equal their
respective gross fair market values (taking Code Section 770 l(g) into account), as
determined pursuant to sub-paragraph (iv) below, upon admission of a new Member to the
Company via a Capital Contribution, upon liquidation of a Members Interest, or upon
liquidation of the Company within the meaning of Regulations Section 1.704-l(b)(2)(ii)(g);
and
(iii) Except as otherwise provided in subparagraph (ii), the Gross Asset Value of
any item of Company assets distributed to any Member shall be adjusted to equal the gross
fair market value (taking Code Section 770 l(g) into account) of such asset on the date of
distribution as determined pursuant to sub-paragraph (iv) below.
(iv) For purposes of this definition, the gross fair market value of any asset
shall be equal to (A) if the Members elect to appraise such asset, the fair market value of
such asset as determined by appraisal, or (B) for any asset listed below, the original cost
of such asset reduced by the economic depreciation of such asset calculated at the specified
percentage per month (prorated based on the number of days in such month for calculations
made other than on the last day of a month), or for any other asset, the adjusted tax basis
of such asset as of the date of determination. For this purpose, the assets subject to
economic depreciation and the specified monthly depreciation percentages shall be as
follows:
- 9 -
|
|
|
|
|
Garbage Trucks |
|
|
.83 |
% |
Commercial Containers and
Other Equipment |
|
|
.83 |
% |
Residential Containers and
Compactors |
|
|
1.67 |
% |
Yellow Iron |
|
|
1.04 |
% |
If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i),
(ii) or (iii), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits and Losses.
Indemnified Matter has the meaning set forth in Section 7.2(b).
Indemnitee has the meaning set forth in Section 7.2(b).
Indemnitor has the meaning set forth in Section 7.2(b).
Interest means any interest in the Company representing some or all of the Capital
Contributions made by a Member, including any and all benefits to which the holder of such an
interest may be entitled as provided in this Agreement and to the extent not inconsistent herewith,
the Act, together with all obligations of such Person to comply with the terms and provisions of
this Agreement.
Involuntary Bankruptcy has the meaning set forth in the definition of Bankruptcy.
Lease means the Master Lease Agreement dated as of April 30, 2001 between the Company, as
the lessor, and the various subsidiaries of Allied Waste, as the Lessees, as amended, supplemented
or otherwise modified from time to time pursuant to Section 5.2, together with all the lease
supplements thereunder.
Lessee shall have the meaning set forth in Exhibit C.
Lien means any lien, mortgage, deed of trust, encumbrance, pledge, charge, lease,
easement, right of others or security interest of any kind, including any thereof arising
under conditional sales or other title retention agreements.
Liquidation
Period has the meaning set forth in Section 12.7.
Liquidator has the meaning set forth in Section 12.9(a).
Losses has the meaning set forth in the definition of Profits and Losses.
- 10 -
Manager means AWP or any Permitted Transferee of AWPs entire Interest as a Member as
constituted at the time of the Transfer provided that such Permitted Transferee is admitted as a
Member pursuant to this Agreement.
Material Adverse Effect on the Company means an effect on the Company that is materially
adverse to the business, operations, properties, assets, financial condition, prospects or results
of operations of the Company and its businesses and assets taken as a whole, or on the consummation
of the Redemption.
Member means any Person (i) who is referred to as such in the first paragraph of this
Agreement, or who has become a substituted Member pursuant to the terms of this Agreement and (ii)
who has not ceased to be a Member. Members means all such Persons.
Member Nonrecourse Debt has the same meaning as the term partner nonrecourse
debt in Section 1.704-2(b)(4) of the Regulations.
Member Nonrecourse Debt Minimum Gain means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3)
of the Regulations.
Modification means, with respect to any Garbage Trucks, Other Assets, or any Part thereof,
(a) any addition, alteration, improvement or modification thereto, (b) the addition, betterment or
enlargement of any property constituting part of such property or the replacement of any such
property with other property, irrespective of whether (i) such replacement property constitutes an
enlargement or betterment of the property that it replaces or (ii) the cost of such addition,
betterment, enlargement or replacement is or may be capitalized in accordance with GAAP and (c)
improvements to the extent constructed as a Modification pursuant to the Lease.
Nonrecourse Liability has the meaning set forth in Section 1.704-2(b)(3) of the Regulations.
Other Assets means construction equipment (i.e., yellow iron), commercial and residential
containers, compactors and other waste management equipment (i.e., trash and/or recyclables balers;
service vehicles; pick-up trucks; transfer tractors and trailers; portable toilet trucks; portable
toilets; forklifts; bobcats and small loaders; container delivery vehicles; and sweepers) acquired
by the Company from time to time and any replacements or substitutions therefor, if applicable, in
accordance with the Lease.
Parent of any Person means any Affiliate of such Person directly or indirectly controlling
such Person.
- 11 -
Parts means appliances, parts, instruments, appurtenances, accessories and equipment
of whatever nature, whether or not constituting Modifications.
Percentage Interest means, with respect to any Member, the Percentage Interest of such
Member as set forth in Section 2.1. In the event all or a portion of an Interest is Transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the Percentage
Interest of the transferor to the extent it relates to the Transferred Interest.
Permitted Transfer has the meaning set forth in Section 10.2.
Permitted Transferee has the meaning set forth in Section 10.2.
Person means any individual, partnership (whether general or limited), limited liability
company, corporation, trust, estate, association, nominee or other entity.
Prime Rate means a per annum rate that equal to the prime rate as in effect from time to
time as set forth in The Wall Street Journal.
Profits and Losses mean, for each Allocation Year, an amount equal to the Companys
taxable income or loss for such Allocation Year, determined in accordance with Code Section 703(a)
(for this purpose, all items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(l) shall be included in taxable income or loss), with the following
adjustments (without duplication):
(i) Any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this definition of
Profits and Losses shall be added to such taxable income or loss;
(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-l(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses
pursuant to this definition of Profits and Losses shall be subtracted from such taxable
income or loss;
(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant
to subparagraphs (ii) or (iii) of the definition of Gross Asset Value, the amount of such
adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset
Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of
the asset) from the disposition of such asset and shall be taken into account for purposes
of computing Profits or Losses;
- 12 -
(iv) Gain or loss resulting from any disposition of Properties with respect to
which gain or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the Properties disposed of, notwithstanding that the
adjusted tax basis of such Properties differs from its Gross Asset Value; and
(v) In lieu of the depreciation, amortization, and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such Allocation Year, computed in accordance with the definition of
Depreciation.
Properties means the Garbage Trucks, Other Assets, Modifications, cash equivalents,
cash and all other personal property acquired by the Company and shall include both tangible
and intangible property.
Put Option means the Class B Put (as defined in the Second Amended and Restated
Partnership Agreement of American Ref-Fuel Company of Essex County, dated as of April 30, 2001).
Reconstitution Period has the meaning set forth in Section 12.1 (b).
Redemption means the redemption by the Ref-Fuel Company of the partner interest of BFI
Energy Systems of Essex County, Inc. in Ref-Fuel Company pursuant to the Second Amended and
Restated Partnership Agreement thereof.
Regulations means the Income Tax Regulations, including Temporary Regulations, promulgated
under the Code, as such regulations are amended from time to time.
Regulatory Allocations has the meaning set forth in Section 3.4.
Responsible Administrative Officers has the meaning set forth in Section 5.3(c).
Responsible Participating Officers has the meaning set forth in Section 5.3 (c).
Responsible Officers means the Responsible Administrative Officers and the Responsible
Participating Officers.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Security Agreement means the Security Agreement dated as of April 30, 2001, among H Leasing
Company, LLC, E Leasing Company, LLC, N Leasing Company, LLC
- 13 -
and S Leasing Company, LLC, as grantors, and GECC, in its capacity as Agent for Lenders
under the Credit Agreement.
Special Purpose Manager means Ref-Fuel Company or any transferee of Ref-Fuel Companys
entire Interest as a partner in the Company as constituted at the time of the Transfer.
Transfer means, as a noun, any voluntary or involuntary transfer, sale, pledge or
hypothecation or other disposition and, as a verb, voluntarily or involuntarily to transfer, sell,
pledge or hypothecate or otherwise dispose of.
UCC means the Uniform Commercial Code as in effect in the states of New York and Delaware
from time to time and any other jurisdiction that has adopted similar provisions.
Voluntary Bankruptcy has the meaning set forth in the definition of Bankruptcy.
1.11 Other Terms.
Unless the content shall require otherwise:
(a) Words importing the singular number or plural number shall include the plural number and
singular number respectively;
(b) Words importing the masculine gender shall include the feminine and neuter genders
and vice versa;
(c) Reference to include, includes, and including shall be deemed to be followed by the
phrase without limitation;
(d) Reference in this Agreement to herein, hereby or hereunder, or any similar
formulation, shall be deemed to refer to this Agreement as a whole, including the Exhibits; and
(e) Reference to and and or shall be deemed to mean and/or.
- 14 -
ARTICLE II
MEMBERS CAPITAL CONTRIBUTIONS
2.1 Capital Contributions.
The name, address, amount of Capital Contribution, and Percentage Interest of each of the
Members is as follows:
|
|
|
|
|
|
|
|
|
|
|
Capital |
|
Percentage |
Name and Address |
|
Contribution |
|
Interest |
American Ref-Fuel Company of Essex County |
|
$ |
15,384,479 |
|
|
|
99 |
% |
15990 North Bakers Landing #200
Houston, TX 77079
Attention: William Reynolds
Facsimile No.: (281) 649-4815 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
With copies to: |
|
|
|
|
|
|
|
|
Duke/UAE
c/o United American Energy Corp.
50 Tice Boulevard
Woodcliff Lake, New Jersey 07675
Attention: Donald Krom
Facsimile No.: (201) 307-1020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allied Waste North America, Inc. |
|
$ |
155,399 |
|
|
|
1 |
% |
15880 North GreenwayHayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention : General Counsel
Facsimile No. : (480) 627-2703 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
With copies to : |
|
|
|
|
|
|
|
|
Fried, Frank, Harris, Shriver &
Jacobson
One New York Plaza
New York, New York 10006
Attention: Craig Miller
Facsimile No. : (212) 859-8587 |
|
|
|
|
|
|
|
|
- 15 -
ARTICLE III
ALLOCATIONS
3.1 Profits.
After giving effect to the special allocations set forth in Sections 3.3 and 3.4 and subject
to Section 3.5, Profits for any Allocation Year shall be allocated to the Members in accordance
with their Percentage Interests.
3.2 Losses.
After giving effect to the special allocations set forth in Sections 3.3 and 3.4 and subject
to Section 3.5, Losses for any Allocation Year shall be allocated to the Members in accordance with
their Percentage Interests.
3.3 Special Allocations.
The following special allocations shall be made in the following order:
(a) Nonrecourse Deductions. Notwithstanding any other provision of this Agreement, (i)
deductions attributable to Member Nonrecourse Debt, if any, of the Company for each Allocation Year
shall be allocated to the Member that bears the economic risk of loss within the meaning of Treas.
Reg. 1.704-2(i), and (ii) deductions attributable to Nonrecourse Liabilities of the Company, if
any, shall be allocated for each Allocation Year in the same proportion as Profits and Losses for
such Allocation Year.
(b) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the
Regulations, notwithstanding any other provision of this Article III, if there is a net decrease in
Company Minimum Gain during any Allocation Year, each Member shall be specially allocated items of
Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years)
in an amount equal to such Members share of the net decrease in Company Minimum Gain, determined
in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated to each Member
pursuant thereto. The items to be so allocated shall be determined in accordance with Sections
1.704-2(f) (6) and 1.704-2(j) (2) of the Regulations. This Section 3.3(a) is intended to comply
with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be
interpreted consistently therewith.
(c) Member Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i) (4) of
the Regulations, notwithstanding any other provision of this Article III, if there is a net
decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Allocation Year, each Member
- 16 -
who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse
Debt, determined in accordance with Section 1.704-2(i) (5) of the Regulations, shall be specially
allocated items of Company income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such Members share of the net decrease in Member
Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i) (4). Allocations
pursuant to the previous sentence shall be made in proportion to the respective amounts required to
be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in
accordance with Sections 1.704-2(i) (4) and 1.704-2(j) (2) of the Regulations. This Section 3.3(b)
is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i) (4) of the
Regulations and shall be interpreted consistently therewith.
(d) Qualified Income Offset. In the event any Member unexpectedly receives any
adjustments, allocations, or distributions described in Sections 1.704-l(b)(2)(ii)(d)(4),
1.704-l(b)(2)(ii)(d)(5), or 1.704-l(b)(2)(ii)(d)(6) of the Regulations, items of Company income and
gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate,
to the extent required by the Regulations, the Adjusted Capital Account Deficit of the Member as
quickly as possible; provided that an allocation pursuant to this Section 3.3(c) shall be made only
if and to the extent that the Member would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article III have been tentatively made as if this Section 3.3 (c)
were not in the Agreement.
(d) Gross Income Allocation. In the event any Member has a deficit Capital Account at the
end of any Allocation Year which is in excess of the sum of the amount such Member is deemed to be
obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(l)
and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain
in the amount of such excess as quickly as possible; provided that an allocation pursuant to this
Section 3.3(d) shall be made only if and to the extent that such Member would have a deficit
Capital Account in excess of such sum after all other allocations provided for in this Article III
have been made as if Section 3.3(c) and this Section 3.3(d) were not in the Agreement.
3.4 Curative Allocations.
The allocations set forth in Sections 3.3(a), 3.3(b), 3.3(c) and 3.3(d) (the Regulatory
Allocations) are intended to comply with certain requirements of the Regulations. It is the intent
of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of Company income, gain,
loss or deduction pursuant to this Section 3.4. Therefore, notwithstanding any other provision of
this Article III (other than the Regulatory Allocations), the Tax Matters Member shall make such
offsetting special allocations of Company income, gain, loss or deduction in whatever manner it
determines
- 17 -
appropriate so that, after such offsetting allocations are made, each Members Capital Account
balance is, to the extent possible, equal to the Capital Account balance such Member would have had
if the Regulatory Allocations were not part of the Agreement and all Company items were allocated
pursuant to Sections 3.1 and 3.2.
3.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other items allocable to
any period, Profits, Losses and any such other items shall be determined on a daily, monthly or
other basis, as determined by the Tax Matters Member using any permissible method under Code
Section 706 and the Regulations thereunder; provided, however, in the event there is a distribution
by Ref-Fuel Company of its Interest pursuant to the Redemption, such allocation for such Allocation
Year shall be based on the number of months preceding and succeeding such distribution in such
Allocation Year, and if such distribution occurs other than on the first day of a month, such month
shall be pro-rated based on the number of days preceding and including the date of the distribution
and the number of days following the distribution, excluding, for this purpose, any income, gain,
loss or deduction resulting from any transactions occurring in such month outside the ordinary
course of business.
(b) The Members are aware of the income tax consequences of the allocations made by this
Article III and hereby agree to be bound by the provisions of this Article III in reporting their
shares of Company income and loss for income tax purposes.
(c) Solely for purposes of determining a Members proportionate share of the excess
nonrecourse liabilities of the Company within the meaning of Regulations Section 1.752-3(a) (3),
the Members interests in Company Profits are in proportion to their Percentage Interests.
(d) To the extent permitted by Section 1.704-2(h) (3) of the Regulations, the Tax Matters
Member shall endeavor to treat distributions of cash as having been made from the proceeds of a
Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would
cause or increase an Adjusted Capital Account Deficit for any Member.
3.6 Tax Allocations: Code Section 704(c).
(a) Except as otherwise required by Code Section 704(c) and the Regulations
thereunder, each item of Company income, gain, loss and deduction shall be allocated for tax
purposes, to the extent possible, in the same manner as provided in this Article III other than
this Section 3.6.
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(b) In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss
and deduction with respect to any property contributed to the capital of the Company shall, solely
for tax purposes, be allocated among the Members so as to take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes and its initial
Gross Asset Value (computed in accordance with the definition of Gross Asset Value).
In the event the Gross Asset Value of any Company asset is adjusted pursuant to the definition
of Gross Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to
such asset shall, as appropriate, take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Gross Asset Value in a manner consistent with Code
Section 704(c) and the Regulations thereunder.
Any elections or other decisions relating to such allocations shall be made by the Tax Matters
Member as provided in Section 8.3 in any manner that reasonably reflects the purpose and intention
of this Agreement.
(c) Allocations pursuant to this Section 3.6 are solely for purposes of federal, state and
local taxes and shall not affect, or in any way be taken into account in computing, any Members
Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision
of this Agreement.
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions.
The Company shall make distributions to the Members, pro rata in accordance with their
Percentage Interests, in such amounts and at such times as the Manager and the Special Purpose
Manager shall unanimously agree. Notwithstanding the foregoing, if the period for consummating the
Redemption has expired as contemplated by Article XI of the Second Amended and Restated Partnership
Agreement of Ref-Fuel Company without the Redemption having occurred, the Company shall make
distributions to the Members, pro rata in accordance with their Percentage Interests, no later than
three business days prior to the date on which any Member (or any member of a Member) is required
to make a payment of estimated taxes in respect of any Allocation Year, in an amount equal to the
excess of (a) the product of (i) the Companys reasonable estimate of the cumulative amount of
Profits (net of any Losses) allocable to the Members for such Allocation Year through the date such
estimated taxes are due and (ii) 40% over (b) the amount of any distributions previously made to
the Members pursuant to this Section 4.1 in respect of
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such Allocation Year. Within five business days after the date the Companys income tax returns are
filed for any Allocation Year, the Company shall make a further distribution, if necessary, to the
Members, pro rata in accordance with their Percentage Interests, calculated in the same manner as
set forth in the preceding sentence, with respect to the amount of Profits (net of Losses) actually
allocated to the Members for such Allocation Year as reflected in the filed tax returns.
4.2 Amounts Withheld.
All amounts withheld pursuant to the Code or any provision of any state, local or
foreign tax law with respect to any payment, distribution or allocation to the Company or the
Members shall be treated as amounts paid or distributed, as the case may be, to the Members with
respect to which such amount was withheld pursuant to this Section 4.2 for all purposes under this
Agreement. The Company is authorized to withhold from payments and distributions, or with respect
to allocations to the Members, and to pay over to any federal, state and local government, any
amounts required to be so withheld pursuant to the Code or any provisions of any other federal,
state or local law, and shall allocate any such amounts to the Members with respect to which such
amount was withheld.
4.3 Limitations on Distributions.
(a) The Company shall make no distributions to the Members except as provided in
this Article IV and Article XII.
(b) A Member may not receive a distribution from the Company to the extent that, after giving
effect to the distribution, all liabilities of the Company, other than any liability to Members on
account of their Capital Contributions, would exceed the fair value of the Companys assets.
ARTICLE V
MANAGEMENT
5.1 The Manager.
(a) Except as otherwise provided in Sections 5.2 and 5.3, the Members intend that the
Company be managed by the Manager in accordance with Section 18-402 of the Act and with the
provisions of this Agreement.
(b) Subject to any restrictions set forth in this Agreement, the Members hereby delegate all
powers to operate and manage the business and affairs of the Company and to bind the Company to,
and all such powers shall be exclusively vested in, the Manager and
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the Manager may exercise all such powers of the Company and do all such lawful acts as are not by
statute, the Certificate or this Agreement directed or required to be exercised by the Members and
in so doing shall have the right and authority to take all actions which the Manager deems
necessary, useful or appropriate for the management and conduct of the business and affairs of the
Company, including, without limitation:
(i) all actions and activities relating to the conduct of the Companys business
and affairs;
(ii) the preparation of the Companys books, records, financial statements;
(iii) reports described in Article VIII;
(iv) any action required by Section 1.6;
(v) any termination, modification, amendment, supplementation or other change of the
Credit Agreement and the Security Agreement;
(vi) the supplementation of the Lease to add additional Garbage Trucks or Other
Assets to the equipment or other properties leased thereunder on terms and conditions no
less favorable to the Company than those provided by the Lease as the date hereof; and
(vii) investment of any cash not distributed to the Members in cash equivalents
and sale of any investments in cash equivalents for the purpose of making
distributions under this Agreement.
(c) The Manager may, from time to time, appoint one or more individuals to be officers of
the Company. The Manager shall have the power to delegate the authority granted to it pursuant to
this Section 5.1 to such officers, employees, agents and representatives of the Company as it may
from time to time deem appropriate. Any delegation of authority to take any action must be approved
in the same manner as would be required for the Manager to approve such action directly. The
Manager may, if it wishes, appoint the following officers: a President, one or more
Vice-Presidents, a Secretary, a Treasurer and may appoint other officers (including one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary or desirable for
the business of the Company. Any two or more offices may be held by the same person. Each officer
shall hold office until his successor shall have been duly elected and shall have qualified, or
until his death, or until he shall have resigned or have been removed, as provided in this section
5.1(c). The salaries or other compensation, if any, of the officers of the Company shall be fixed
from time to time by the Manager. Any officer of the Company may be removed, either with or without
cause, at any time, by the Manager.
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(d) The Manager shall perform its duties under this Agreement in a manner it believes to be in
the best interests of the Company, and shall be under no fiduciary duty to the Members, the Special
Purpose Manager, any creditor of the Company or any other Person. A Person who so performs its
duties shall not have any liability by reason of being or having been a Manager of the Company, the
Liquidator or the Tax Matters Member.
(e) The Manager shall not be liable under a judgment, decree or order of a court or in
any other manner for the debts, obligations or liabilities of the Company.
5.2 Restrictions on Authority of the Manager.
Except as otherwise provided in this Agreement, without the consent of both the Manager and
the Special Purpose Manager, the Manager shall not have the authority to, and covenants and
agrees that it shall not:
(a) Do any act in contravention of this Agreement or, when acting on behalf of the Company,
engage in activities inconsistent with the purposes of the Company;
(b) Do any act which would make it commercially unreasonable to carry on the ordinary business
of the Company, and the Manager shall not be required to do any such act otherwise required to be
done by it pursuant to this Agreement without the consent of all of the Members;
(c) Possess Properties, or assign rights in specific Property, for other than a Company
purpose;
(d) Perform any act that would, to the Managers knowledge, subject any Member to
liability in any jurisdiction for the debts or obligations of the Company;
(e) Cause the Company to voluntarily take any action with respect to the Company described in
clauses (i), (ii) or (iii) of the definition of Voluntary Bankruptcy in Section 1.10;
(f) Cause or permit the Company to incur, assume or obligate itself by contract for any Debt,
except for Debt incurred under the Credit Agreement;
(g) Cause or permit the Company to acquire, by purchase any assets other than Garbage Trucks,
Other Assets and Modifications and other personal property that is necessary to carry out the
purposes of the Company as set forth in Section 1.3;
(h) Cause the Company to voluntarily dissolve;
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(i) Sell, abandon or dispose of all or substantially all of the assets of the
Company;
(j) Cause the Company to change its Fiscal Year or method of accounting, unless
such change is required by GAAP, the Code or Regulations thereunder;
(k) Cause or permit the admission of any Member to the Company other than pursuant to
Article X;
(1) Cause the Company to fail to be taxable as a partnership for federal income tax
purposes or to take a position inconsistent with such treatment except as required by law;
(m) Cause or permit the Company to legally merge or consolidate with or into any Person;
(n) Cause the Company to acquire any debt or equity securities of any Member or Affiliate
of any Member or otherwise lend funds to any such Person;
(o) Cause the Company to sell, lease or distribute any asset other than in
accordance with the Lease or in the course of the liquidation of the Company;
(p) Cause the Company to incur any capital expenditures other than in connection
with the purchase of Garbage Trucks, Other Assets, the procurement of Modifications thereof
and other personal property that is necessary to carry out the purposes of the Company as set
forth in Section 1.3;
(q) Except Liens arising under the Security Agreement and applicable laws, mortgage,
hypothecate or cause the creation of any consensual lien on, or security interest in, the
Properties;
(r) Except as otherwise required by GAAP, cause the Company to take any position in its
books and records with respect to the Garbage Trucks, the Other Assets and Modifications that is
inconsistent with the treatment of the Lease as an operating lease for tax and financial
reporting purposes;
(s) Agree to the form of the Lease (other than substantially in the form of Exhibit C
hereto consistent with the financial model previously prepared by affiliates of the parties), or
once the form of the Lease has been approved, agree to any material modifications to the Lease or
change the lease rate from that shown on Exhibit C;
(t) Agree to any material modification to the Allied Finance documents (as such term is
defined in the Credit Agreement) that would have a material adverse effect
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on any Member (other than the Manager or any other Affiliate of Allied Waste) without the consent
of such adversely affected Member;
(u) Cause any Garbage Trucks, Other Assets or Modifications to be acquired by the Company
unless simultaneously with such acquisition, such assets are to be leased to a third party pursuant
to the Lease; or
(v) Cause any Other Property consisting of real property, including buildings and
fixtures, to be acquired by the Company.
5.3 Special Provisions Following Occurrence of Bankruptcy of Manager.
Notwithstanding anything contained in this Agreement to the contrary, following the occurrence
of a Bankruptcy of the Manager or any Affiliate of the Manager, all actions that the Manager would
be otherwise authorized to take under this Agreement shall require prior written consent of the
Special Purpose Manager. Such consent shall be given in the form of general authority to take
actions with a specified scope of authority.
5.4 Duties and Obligations of the Manager and the Special Purpose Manager.
(a) The Manager and the Special Purpose Manager shall cause the Company to conduct its
business and operations separate and apart from that of any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, including, without limitation, (i) segregating Company
assets and not allowing funds or other assets of the Company to be commingled with the funds or
other assets of, held by, or registered in the name of, any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, (ii) maintaining books and financial records of the
Company separate from the books and financial records of any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, and observing all Company procedures and formalities,
including, without limitation, maintaining minutes of Company meetings and acting on behalf of the
Company only pursuant to authorization of the Members as required under this Agreement, (iii)
causing the Company to pay its liabilities only from available assets of the Company, and (iv)
causing the Company to conduct its dealings with third parties in its own name and as a separate
and independent entity.
(b) The Manager shall take all actions which may be necessary or appropriate (i) for the
continuation of the Companys valid existence as a limited liability company under the laws of the
State of Delaware and of each other jurisdiction in which such existence is necessary to protect
the limited liability of the Members or to enable the Company to conduct the business in which it
is engaged, and (ii) subject to the other terms and conditions of this Agreement and expressly
without any obligation to make capital contributions except as specified in Section 2.1, for the
accomplishment of the
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Companys purposes, including the acquisition, maintenance, preservation, and operation of
Properties in accordance with the provisions of this Agreement and applicable laws and regulations.
(c) On the Effective Date, the Manager and the Special Purpose Manager shall each provide to
the Company a written statement naming those of its officers that will be responsible for the
management and operations of the Company delegated to it in accordance with this Article V (such
individuals, if appointed by the Manager, the Responsible Administrative Officers and if
appointed by the Special Purpose Manager, the Responsible Participating Officers), until such
time as the Manager or the Special Purpose Manager has provided to the Company another written
statement naming other officers as Responsible Officers, and the Manager and the Special Purpose
Manager each hereby covenant and agree that its Responsible Officers shall maintain the
separateness of the Companys operations and otherwise comply with all of the terms of this
Agreement. On the Effective Date, the initial Responsible Administrative Officers shall be as
follows: Don W. Slager, President; Jeffrey Hughes, Vice-President; Jo Lynn White, Secretary; Jenny
L. Apker, Assistant Secretary; Thomas P. Martin, Treasurer. The initial Responsible Administrative
Officers shall hold office unless and until such time as the Manger has provided the Company with a
written statement naming other officers as Responsible Administrative Officers in accordance with
this Article V.
(d) The Manager shall notify the Members of the occurrence of any Dissolution Event described
in Section 12.1 or any event which with notice or lapse of time or both would constitute a
Dissolution Event (other than the event described in Section 12.1 (a)(i)) and the action which the
Manager has taken or proposes to take with respect thereto, promptly, but no later than ten (10)
Business Days, after any Responsible Administrative Officer has actual knowledge of such
occurrence.
(e) All distributions or payments of cash to the Members pursuant to any provision of this
Agreement shall be made by wire transfer of immediately available funds, no later than 1:00 p.m.,
Eastern Standard Time, on the day of distribution or payment, and, at the time of any such
distribution or payment, the Manager shall provide to the Members a notice identifying the nature
of the distribution or payment, the Section or Sections of this Agreement pursuant to which it is
being made and the amount being distributed or paid pursuant to each such Section.
5.5 Management Fee/Expenses.
(a) Neither the Manager nor the Special Purpose Manager shall receive any
management or other fee or salary for services rendered to the Company, or
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reimbursement of any costs and expenses incurred in connection therewith, except as permitted
pursuant to Section 1.9 (c) or as provided in Section 5.5(b).
(b) The Manager and the Special Purpose Manager shall each be entitled to current
reimbursement out of Company assets for all reasonable costs and expenses incurred by it when
acting for or on behalf of the Company and in accordance with the terms of this Agreement
specifically including, but not limited to, all salaries and related expenses of its employees
performing authorized services for the Company. The Manager shall be entitled to an annual fee in
the amount of $100,000, payable quarterly in advance, for accounting and administrative services.
ARTICLE VI
ROLE OF MEMBERS
6.1 Rights or Powers.
Except as provided in this Agreement, the Members, in their capacities as members of the
Company, hereby agree not to exercise any right or power to take part in the management of the
Company or its business and affairs or to act for or bind the Company in any way. Notwithstanding
the foregoing, the Members have all the rights and powers specifically set forth in this Agreement
and, to the extent not inconsistent with this Agreement, in the Act.
6.2 Meetings of the Members.
(a) Meetings of the Members may be called upon the written request of any Manager or Member.
The call shall state the location of the meeting and the nature of the business to be transacted.
Notice of any such meeting shall be given to all Members not less than one (1) Business Day nor
more than thirty (30) days prior to the date of such meeting. Members may vote in person, by proxy
or by telephone at such meeting and may waive advance notice of such meeting. Whenever the vote or
consent of Members is permitted or required under this Agreement, such vote or consent may be given
at a meeting of the Members or may be given in accordance with the procedure prescribed in this
Section 6.3.
(b) Each Member may authorize any Person or Persons to act for it by proxy on all matters in
which a Member is entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Member or its attorney-in-fact. No
proxy shall be valid after the expiration of eleven (11) months from the date thereof unless
otherwise provided in the proxy. Every proxy prior to its exercise shall be revocable at the
pleasure of the Member executing it.
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(c) Each meeting of the Members shall be conducted by the Member or Manager calling the
meeting.
(d) Notwithstanding this Section 6.3, the Company may take any action contemplated under this
Agreement as approved by the consent of the Members, such consent to be provided in writing, or by
telephone or facsimile, if such telephone conversation or facsimile is followed by a written
summary of the telephone conversation or facsimile communication sent by registered or certified
mail, postage and charges prepaid, addressed as described in Section 13.1 hereof, or to such other
address as such Person may from time to time specify by notice to the Members and the Manager.
6.3 Withdrawal/Resignation.
Except as otherwise provided in Article IV and Article XII, no Member shall demand or receive
a return on or of its Capital Contributions or withdraw from the Company without the consent of
both the Manager and the Special Purpose Manager. Except as otherwise provided in the Act or this
Agreement, upon resignation, any resigning Member is entitled to receive only the distribution to
which he is entitled under this Agreement, which shall be equal to the fair value of its Interest
in the Company as of the date of resignation.
6.4 Member Compensation.
No Member shall receive any interest, salary or draw with respect to its Capital Contributions
or its Capital Account or for services rendered on behalf of the Company, or otherwise, in its
capacity as a Member, except as otherwise provided in this Agreement.
6.5 Members Liability.
No Member shall be liable under a judgment, decree or order of a court, or in any other manner
for the debts or any other obligations or liabilities of the Company and each Member shall be
liable only to make its Capital Contributions and shall not be required to restore a deficit
balance in its Capital Account or to lend any funds to the Company or, after its Capital
Contributions have been made pursuant to Article II, to make any additional contributions,
assessments or payments to the Company; provided that a Member may be required to repay
distributions made to it as provided in Section 18-607 of the Act. None of the Members, the Manager
or the Special Purpose Manager shall have any personal liability for the repayment of any Capital
Contributions of any Member.
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6.6 Partition.
While the Company remains in effect or is continued, each Member agrees and waives its rights
to have any Properties partitioned, or to file a complaint or to institute any suit, action or
proceeding at law or in equity to have any Properties partitioned, and each Member, on behalf of
itself, its successors and its assigns hereby waives any such right.
6.7 Transactions Between a Member and the Company.
Except as otherwise provided by applicable law and subject to Section 5.2, any Member may, but
shall not be obligated to, transact business with the Company and has the same rights and
obligations when transacting business with the Company as a person or entity who is not a Member. A
Member, any Affiliate thereof or an employee, stockholder, agent, director or officer of a Member
or any Affiliate thereof, may also be an employee or be retained as an agent of the Company. The
existence of these relationships and acting in such capacities will not result in such Member being
deemed to be participating in the control of the business of the Company or otherwise affect the
limited liability of such Member.
6.8 Other Instruments.
Each Member hereby agrees to execute and deliver to the Company promptly after receipt of a
written request therefor, such other and further documents and instruments, statements of interest
and holdings, designations, powers of attorney and other instruments and to take such other action
as the Manager reasonably deems necessary, useful or appropriate to comply with any laws, rules or
regulations as may be necessary to enable the Company to fulfill its responsibilities under this
Agreement.
6.9 Other Covenants.
Each Member hereby agrees:
(a) To maintain books and records separate from the Company;
(b) Not to commingle assets with those of the Company;
(c) Not to conduct its own business in the name of the Company;
(d) To maintain separate financial statements from those of the Company;
(e) Not to pay its own liabilities out of the funds of the Company;
(f) To observe all corporate, partnership or limited liability company (as applicable)
formalities;
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(g) Not to pay the salaries of its own employees with funds of the Company;
(h) Not to guarantee or become obligated for the debts of the Company or hold out its credit
as being available to satisfy the obligations of the Company;
(i) To maintain office space separate from the Company;
(j) To use stationery, invoices, and checks separate from those of the
Company;
(k) Not to pledge its assets for the benefit of the Company;
(l)
To hold itself out as a separate entity from the Company;
(m) Except as otherwise permitted by this Agreement, not to (i) take any action to file a
certificate of dissolution or its equivalent with respect to itself, (ii) exercise any power under
the Act to dissolve the Company, and (iii) petition for judicial dissolution of the Company; and
(n) To file all of its income tax returns in a manner consistent with its status as a partner
of the Company for income tax purposes, unless otherwise specifically required by applicable law,
including relevant judicial or administrative interpretations thereof.
Notwithstanding the foregoing, the execution, delivery and performance of the Lease is not a
violation of this Agreement.
ARTICLE VII
INDEMNIFICATIONS
7.1 Indemnification of the Company, the Managers and the Members.
(a) Unless otherwise provided in Section 7.1(c), the Company, its receiver or its trustee
(in the case of its receiver or trustee, to the extent of Properties) shall indemnify, save
harmless, and pay all Damages of the Manager, the Special Purpose Manager and any Member or any
stockholders, directors, members, officers, employees or agents of any of them relating to any
Damages incurred by reason of any act performed or omitted to be performed by such Manager or such
Member or any stockholders, directors, members, officers, employees or agents of any of them in
connection with the business of the Company, including reasonable attorneys fees incurred by such
Manager or such Member or any stockholder, director, member, officer, employee or agent of any of
them in connection with the defense of any action based on any such act or omission, which
attorneys fees may be paid as incurred.
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(b) Unless otherwise provided in Section 7. l(c), in the event of any action by a Member
against any Manager or any stockholder, director, member, officer, employee or agent of any
Manager, including a Company derivative suit, the Company, its receiver or its trustee (in the case
of its receiver or trustee, to the extent of Properties) shall indemnify, save harmless, and pay
all Damages of such Person, including reasonable attorneys fees incurred in the defense of such
action; provided that such Person shall provide an undertaking to repay the indemnification payment
made by the Company to such Person pursuant to this Section 7.1(b) if such Person is found by a
final nonappealable judgment not to be entitled to indemnification.
(c) Notwithstanding the provisions of Sections 7.1 (a) and 7.1 (b), (i) such Sections
shall be enforced only to the maximum extent permitted by law and (ii) no Member or Manager
shall be indemnified from any liability for its fraud, willful misconduct or gross
negligence.
(d) The obligations of the Company set forth in this Section 7.1 are expressly intended to
create third party beneficiary rights in favor of any Manager and any stockholder, director,
member, officer, employee or agent of any Manager or any Member and any Member is authorized, on
behalf of the Company, to give written confirmation to any such Person of the existence and extent
of the Companys obligations to such Person hereunder.
7.2 Indemnification Procedures.
(a) In the event any claim is made by a third party against any Manager, any Member, the
Liquidator, or any stockholder, officer, member, director, agent, employee, successor or assign of
any of them, with respect to an actual or potential liability for which any such Person is
otherwise entitled to be indemnified under any provisions of Section 7.1(a), 7.1(b) and 12.9(c),
and any such Person wishes to be indemnified with respect thereto, such Person shall observe the
procedures set forth below in Section 7.2.
(b) A party entitled to indemnification pursuant to Article VII (an Indemnitee) shall give
the party obligated to provide indemnification (the Indemnitor) notice in writing of any claim or
other matter as to which indemnification will be sought (an Indemnified Matter) as promptly as is
reasonably practicable after the Indemnitee becomes aware of the Indemnified Matter and shall
thereafter keep the Indemnitor reasonably informed with respect thereto; provided that failure of
the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the
Indemnitor of any of its obligations hereunder, except to the extent that the Indemnitor is
materially prejudiced by such failure. The Indemnitor shall be entitled to assume the defense or
handling of such Indemnified Matter by giving written notice of its intention to do so to the
Indemnitee within 30 days after receipt of the notice, with counsel reasonably satisfactory to the
Indemnitee at the Indemnitors own expense, and the Indemnitee shall
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cooperate with the Indemnitor, at the Indemnitors expense, in any such action. If the Indemnitor
shall assume the defense of such Indemnified Matter, it shall not settle such Indemnified Matter
unless such settlement includes as an unconditional term thereof the giving by the claimant or the
plaintiff of a full, general release of the Indemnitee, reasonably satisfactory to the Indemnitee,
from all liability with respect to such Indemnified Matter. As long as the Indemnitor is contesting
any such Indemnified Matter in good faith and on a timely basis, the Indemnitee shall not pay or
settle any claims relating to the Indemnified Matter. Notwithstanding the assumption by the
Indemnitor of the defense or handling of any Indemnified Matter as provided in this Section 7.2
(b), the Indemnitor shall thereafter consult with the Indemnitee upon its reasonable request from
time to time with respect to such Indemnified Matter. The Indemnitee shall be permitted to join in
the defense or handling of such Indemnified Matter and to employ counsel at its own expense;
provided, however, that if the defendants or potential defendants or obligors in connection with
any Indemnified Matter shall include both an Indemnitor and an Indemnitee, and such Indemnitee
shall have reasonably concluded that counsel selected by the Indemnitor has a conflict of interest
because of the availability of different or additional defenses to such Indemnitee, such Indemnitee
shall have the right to select separate counsel to participate in the defense or handling of such
Indemnified Matter on its behalf, the reasonable fees and expenses of which shall be borne by the
Indemnitor.
(c) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense
or handling of any such Indemnified Matter within the prescribed period of time, or shall notify
the Indemnitee that it will not assume the defense or handling of any such Indemnified Matter, then
the Indemnitee may assume the defense or handling of any such Indemnified Matter, in which event it
may do so in such manner as it may deem appropriate, and the Indemnitor shall be bound by any
determinations made in connection with such Indemnified Matter or any settlement thereof effected
by the Indemnitee, unless the Indemnitor shall, within 20 days after notice of the proposed terms
of such determination or settlement, object to such determination or settlement, as the case may
be, and agree to pay all reasonable costs and expenses of the Indemnitee in connection with the
Indemnitees defense of such Indemnified Matter, in which case the Indemnitor shall not be bound by
any such determination or settlement effected without its consent, so long as the Indemnitor
promptly pays such costs and expenses as incurred by the Indemnitee. The failure or election of the
Indemnitor to assume the defense or handling of any such Indemnified Matter shall not be deemed a
concession that it is required to indemnify the Indemnitee for the subject matter of such
Indemnified Matter. The Indemnitor shall be permitted to join in the defense or handling of such
Indemnified Matter and to employ counsel at its own expense.
(d) Amounts payable by the Indemnitor to the Indemnitee in respect of any Indemnified Matter
for which such party is entitled to indemnification hereunder shall accrue interest at the prime
rate (as set forth from time to time in the Wall Street Journal)
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plus 3% per annum from and including the date such Losses are incurred to but not including the
date of payment or satisfaction of such Losses (with appropriate proration for periods of less than
one year).
ARTICLE VIII
ACCOUNTING, BOOKS AND RECORDS
8.1 Accounting, Books and Records.
(a) The Company shall keep at its principal place of business each of the following:
(i) Separate books of account for the Company which shall show a true and
accurate record of all costs and expenses incurred, all charges made, all credits made and
received, and all income derived in connection with the conduct of the Company and the
operation of its business in accordance with this Agreement;
(ii) A current list of the full name and last known business, or mailing address
of each Member and each Manager, both past and present;
(iii) A copy of the Certificate and all amendments thereto, together with executed
copies of any powers of attorney pursuant to which any amendment has been executed;
(iv) Copies of the Companys federal, state, and local income tax returns and
reports, if any, for each year since the Effective Date;
(v) Copies of this Agreement;
(vi) Copies of any writings permitted or required under Section 18-502 of the Act
regarding the obligation of a Member to perform any enforceable promise to contribute cash
as consideration for such Members Interest; and
(vii) Any written consents obtained from Members pursuant to Section 18-302 of the
Act regarding action taken by Members without a meeting.
(b) The Company shall use the accrual method of accounting in preparation of its financial
reports and for tax purposes and shall keep its books and records accordingly.
(c) All amounts payable under any agreement other than this Agreement between the Company on
the one hand and the Members or their Affiliates on the other hand shall be treated as occurring
between the Company and a Person who is not a partner within the meaning of Section 707(a)(l) of
the Code and such amounts payable
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by the Company to any Member or its Affiliates shall be considered an expense or capital cost, as
the case may be, of the Company for income tax and financial reporting purposes, and shall not be
considered a distribution to such Member including, without limitation, in maintaining such
Members Capital Account, and any such amounts payable by any Member or its Affiliates to the
Company shall not be considered a contribution to the Company, including, without limitation, in
maintaining such Members Capital Account.
(d) Any Member or its designated representative has the right to have reasonable access to and
inspect and copy the contents of the books or records of the Company and shall also have reasonable
access during normal business hours to such additional financial information, documents, books and
records as are in the possession of the Company. The rights granted to a Member pursuant to this
Section 8.1(d) are expressly subject to compliance by such Member with the safety, security and
confidentiality procedures and guidelines of the Company, as such procedures and guidelines may be
established from time to time.
(e) The Companys accountants shall be Arthur Andersen, 501 North 44th Street,
Suite 300, Phoenix, Arizona 85008 unless the Manager and the Special Purpose Manager agree to use
other accountants, which other accountants must be nationally recognized independent certified
public accountants.
8.2 Reports.
(a) In General. The Manager shall be responsible for causing the preparation of
financial reports of the Company and the coordination of financial matters of the Company with the
Companys accountants.
(b) Periodic and Other Reports. The Manager and the Special Purpose Manager, as the case may
be, shall cause to be delivered to each Member the financial statements, reports and certificates
stated below, prepared, where applicable (other than with respect to Members Capital Accounts,
which shall be prepared in accordance with this Agreement), in accordance with GAAP consistently
applied, and such other reports as any Member may reasonably request from time to time; provided
that, such other reports shall be provided at such requesting Members sole cost and expense unless
(x) the information provided therein is needed by the requesting Member in order to comply with any
law or regulations of any governmental or regulatory agency, (y) the Manager elects within thirty
(30) days of such request to pay the cost of providing such reports, or (z) the requested report
was furnished to the Company by the Lessee or was otherwise prepared by the Manager in its capacity
as the Manager.
(i) As soon as practicable following the end of each Fiscal Year (and in any
event not later than one hundred twenty (120) days after the end of such Fiscal
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Year), a statement of the Members Capital Accounts and changes therein during such Fiscal Year;
(ii) As soon as practicable and in any event within 120 days after the end of each fiscal
year of the Company, a balance sheet or equivalent statement of financial position of the Borrower
as at the end of such fiscal year and the related statement of income, changes in Members Capital
Accounts and statement of cash flows for such fiscal year, all presented in accordance with GAAP.
If a Member so requests, such financial statements shall be audited by a firm of independent
certified public accountants selected by the Members. All costs of preparation and distribution of
such reports and the costs of the audit shall be borne by the Company.
(iii) As soon as practicable and in any event within 20 days after the end of each month, a
report on investments in Garbage Trucks and Other Assets as of the end of such month;
(iv) As soon as available and in any event within 45 days after the end of each quarter,
an unaudited balance sheet of the Company as of the end of such quarter and the related statement
of income and changes in Members Capital Accounts and statement of cash flow for such quarter;
(v) Within five days after the Manager obtains knowledge of the occurrence of any event
that (x) is out of the ordinary course of business for the Company or (y) has or is reasonably
likely to have a Material Adverse Effect on the Company, the Manager shall inform all the Members
of such event by providing a report setting forth the detail of such event, and any actions, if
applicable, that are being taken or have been proposed to be taken with respect thereto.
(vi) At such time as distributions are made to the Members pursuant to Article XII
following the occurrence of a Dissolution Event, (A) a balance sheet of the Company as of such time
setting forth the Gross Asset Values of the Properties as adjusted pursuant to clause (ii) of the
definition Gross Asset Value in Section 1.10 and (B) a statement of the Members Capital Accounts
and changes therein for the Fiscal Year then ended, including a statement of the amount of gain or
loss, if any, realized on the sale or disposition or deemed to be realized on the adjustment to the
Gross Asset Value of each Garbage Truck, Other Assets and Modifications thereof, if any, as of such
time, together with appropriate notes to such financial statements and supporting schedules, all of
which shall be audited and certified by the Companys accountants not later than seventy-five (75)
days after the date on which such liquidating distributions are made.
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8.3 Tax Matters.
(a) Tax Elections. The Tax Matters Member shall be permitted to, without any further consent
of the Members being required (except as specifically required herein) but after first obtaining
the prior written consent of the Special Purpose Manager, make any and all elections at its sole
discretion for federal, state and local tax purposes; provided, however, the Special Purpose
Manager shall receive the written consent of the Ref-Fuel Company with respect to the method of tax
depreciation to be used by the Company. The Members may agree as to the allocation of such Members
right with respect to the allocation of duties, responsibilities and control over tax matters.
Notwithstanding the foregoing, the Tax Matters Member shall not make the election under Treasury
Regulations Section 301.7701-3(c) (or any successor provision thereto) for the Company to be
classified other than as a partnership for federal income tax purposes. The Manager is specifically
authorized to act as the Tax Matters Member under the Code and in any similar capacity under
state or local law.
(b) Tax Returns. The Tax Matters Member shall be responsible for managing the preparation and
filing of all federal, state and local tax returns and information reports of the Company and shall
sign such returns and reports on behalf of the Company. The Tax Matters Member shall cause all such
federal, state and local tax returns to be prepared in a manner consistent with the Company having
the status of a partnership for income tax purposes, and such returns shall be prepared
consistently with the terms of this Agreement, in each case unless otherwise specifically required
by applicable law, including relevant judicial or administrative interpretations thereof. In
connection therewith, the Special Purpose Manager and the Members shall furnish the Tax Matters
Member with all information reasonably necessary for the preparation of such returns and reports
and shall prepare (or cause to be prepared) such returns and reports in a timely manner as directed
by the Tax Matters Member, with all tax elections and determinations relating to such returns and
reports to be made as provided in Section 8.3 above. The Special Purpose Manager shall have the
opportunity to review each tax return before such return is filed.
(c) Tax Information. Necessary tax information, including, without limitation, all Company tax
returns and related schedules, shall be delivered to each Member as soon as practicable after the
end of each Fiscal Year of the Company but not later than five (5) months after the end of each
Fiscal Year.
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ARTICLE IX
AMENDMENTS
9.1 Amendments.
Amendments to this Agreement may be proposed by the Manager or any Member. Following such
proposal, the Manager shall submit to the Members a verbatim statement of any proposed amendment,
providing that counsel for the Company shall have approved of the same in writing as to form, and
the Manager shall include in any such submission a recommendation as to the proposed amendment. The
Manager shall seek the written vote of the Members and Managers on the proposed amendment or shall
call a meeting to vote thereon and to transact any other business that it may deem appropriate. A
proposed amendment shall be adopted and be effective as an amendment hereto if it receives the
affirmative vote of all of the Members (and, in the case of any amendment that increases a
Managers duties and/or obligations under this Agreement, such Manager).
ARTICLE X
TRANSFERS
10.1 Restrictions on Transfers.
Except as otherwise permitted by this Agreement, no Member shall Transfer all or any portion
of its Interest.
10.2 Permitted Transfers.
(a) AWP. Subject to the conditions and restrictions set forth in Section 10.3, AWP and any of
its successors or transferees may at any time Transfer all or any portion of its Interest to (a)
any of its Affiliate, or (b) any Person approved by all of the Members.
(b) Ref-Fuel Company. Subject to the conditions and restrictions set forth in Section 10.3,
Ref-Fuel Company and any of its successors or transferees may at any time Transfer all or any
portion of its Interest to (a) AWP or any affiliate of AWP or (b) any Person approved by all of the
Members.
(c) Notwithstanding of Sections 10.2(a) and 10.2(b) above, no Transfer shall be made by any
Member if such Transfer will prevent or otherwise impede the exercise of the Call Option or Put
Option, as the case may be. Notwithstanding anything to the contrary, exercise of the Call Option
or Put Option shall be permitted.
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Any Transfer permitted by this Section 10.2 shall be referred to in this Agreement as a
Permitted Transfer, and the Person
to which the Interest is transferred shall be a Permitted
Transferee.
10.3 Conditions to Permitted Transfers.
Except for Transfers pursuant to the Call Option or the Put Option, a Transfer shall not be
treated as a Permitted Transfer under Section 10.2 hereof unless and until the following conditions
are satisfied:
(a) The transferor and transferee shall execute and deliver to the Company such documents and
instruments of conveyance as may reasonably be necessary or appropriate in the opinion of counsel
to the Company to effect such Transfer and to confirm the agreement of the transferee to be bound
by the provisions of this Article X. In addition, the Company shall be reimbursed by the transferor
and/or transferee for all costs and expenses that it reasonably incurs in connection with such
Transfer.
(b) The transferor and transferee shall furnish the Company with the transferees taxpayer
identification number, sufficient information to determine the transferees initial tax basis in
the Interest transferred, and any other information reasonably necessary to permit the Company to
file all required federal and state tax returns and other legally required information statements
or returns. Without limiting the generality of the foregoing, the Company shall not be required to
make any distribution otherwise provided for in this Agreement with respect to any transferred
Interest until it has received such information.
(c) Except in the case of a Transfer to an Affiliate of Ref-Fuel Company or AWP, the
successors or transferees of either of them and their transferees shall execute certificates
substantially similar to the certificates (the
Form Transferor Certificate and the Form
Transferee Certificatec) attached hereto as Exhibit A-l and Exhibit A-2, respectively.
(d) Immediately following such Transfer, at least one Person other than a state or any
political subdivision thereof, will be a Member of the Company owning a capital and profits
interest therein.
10.4 Prohibited Transfers.
Any purported Transfer of any Interests that is not a Permitted Transfer shall be null and
void and of no force or effect whatever; provided that, if the Company is required to recognize a
Transfer that is not a Permitted Transfer, the Interests Transferred shall be strictly limited to
the transferors rights to allocations and distributions as provided by this Agreement with respect
to the transferred Interests, which allocations
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and distributions may be applied (without limiting any other legal or equitable rights of the
Company) to satisfy any debts, obligations, or liabilities for damages that the transferor or
transferee of such Interest may have to the Company.
In the case of a Transfer or attempted Transfer of Interests that is not a Permitted Transfer,
the parties engaging or attempting to engage in such Transfer shall be liable to indemnify and hold
harmless the Company and the other Member from all Damages that any of such indemnified Member may
incur (including, without limitation, incremental tax liabilities, lawyers fees and expenses) as a
result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby.
10.5 Rights of Unadmitted Assignees.
A Person who acquires a Interest but who is not admitted as a substituted Member
pursuant to Section 10.6 hereof shall be entitled only to allocations and distributions with
respect to such Interest in accordance with this Agreement, and shall have no right to any
information or accounting of the affairs of the Company, shall not be entitled to inspect the books
or records of the Company, and shall not have any of the rights of a Member under the Act or this
Agreement.
10.6 Admission of Substituted Members.
Subject to the other provisions of this Article X, a transferee of a Interest may be
admitted to the Company as a substituted Member only upon satisfaction of the conditions set forth
in this Section 10.6:
(a) The Interest with respect to which the transferee is being admitted was acquired by
means of a Permitted Transfer;
(b) The transferee (other than a transferee that was a Member prior to the Transfer) shall, by
written instrument in form and substance reasonably satisfactory to the Manager (and, in the case
of clause (ii) below, the transferor Member), (i) become a party to this Agreement and (ii) assume
the obligations of the transferor Member under this Agreement with respect to the Transferred
Interest;
(c) The transferee pays or reimburses the Company for all reasonable legal, filing, and
publication costs that the Company incurs in connection with the admission of the transferee as a
Member with respect to the Transferred Interest; and
(d) If required by the Manager, the transferee (other than a transferee that was a Member
prior to the Transfer) shall deliver to the Company evidence of the authority of such Person to
become a Member and to be bound by all of the terms and conditions of this Agreement, and the
transferee and transferor shall each execute and deliver such other instruments as the Manager
reasonably deems necessary or appropriate to effect,
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and as a condition to, such Transfer, including amendments to the Certificate or any other
instrument filed with the State of Delaware or any other state or governmental authority.
10.7 Distributions and Allocations in Respect of Transferred Interests.
If any Interests are Transferred during any Allocation Year in compliance with the
provisions of this Article X, Profits, Losses, each item thereof, and all other items attributable
to the Transferred Interests for such Allocation Year shall be divided and allocated between the
transferor and the transferee by taking into account their varying Percentage Interests during the
Allocation Year in accordance with Code Section 706(d), using any conventions permitted by law and
selected by the Tax Matters Member. Except as provided in Section 4.2, all distributions on or
before the date of such Transfer shall be made to the transferor, and all distributions thereafter
shall be made to the transferee. Solely for purposes of making such allocations, the Company shall
recognize such Transfer not later than the end of the calendar month during which it is given
notice of such Transfer; provided that, if the Company is given notice of a Transfer at least ten
(10) Business Days prior to the Transfer, the Company shall recognize such Transfer as of the date
of such Transfer, and provided further that if the Company does not receive a notice stating the
date such Interest has been Transferred and such other information as the Tax Matters Member may
reasonably require within thirty (30) days after the end of the Allocation Year during which the
Transfer has occurred, then all such items shall be allocated, and all distributions shall be made,
to the Person who, according to the books and records of the Company, is the owner of the Interest
on the last day of such Allocation Year. Neither the Company nor any Manager or Member shall incur
any liability for making allocations and distributions in accordance with the provisions of this
Section 10.7, whether or not the Manager, the Tax Matters Member or the Company has knowledge of
any Transfer of ownership of any Interest.
ARTICLE XI
[Intentionally deleted]
ARTICLE XII
DISSOLUTION AND WINDING UP
12.1 Dissolution Events.
(a) Dissolution. The Company shall dissolve and shall commence winding up and
liquidating upon the first to occur of any of the following (each a Dissolution Event):
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(i) The Bankruptcy of the Company;
(ii) The sale of all or substantially all of the Properties;
(iii) The unanimous vote of the Members to dissolve, wind up, and liquidate
the Company; or
(iv) The happening of any other event that makes it unlawful, impossible, or
impractical to carry on the business of the Company or the Delaware Court of Chancery has
entered a decree pursuant to Section 18-802 of the Act, and such decree has become final.
The Members hereby agree that, notwithstanding any provision of the Act, the dissolution,
retirement, resignation, expulsion or Bankruptcy of any Member as a Member or the transferees of
either of them, shall not constitute a Dissolution Event or otherwise result in the dissolution of
the Company and the Company shall not dissolve prior to the occurrence of a Dissolution Event.
(b) Reconstitution. If it is determined, by a court of competent jurisdiction, that the
Company has dissolved prior to the occurrence of a Dissolution Event, then within ninety (90) days
after such determination (the Reconstitution Period), the Members may elect to reconstitute the
Company and continue its business on the same terms and conditions set forth in this Agreement by
forming a new limited liability company on terms identical to those set forth in this Agreement.
Unless such an election is made within the Reconstitution Period, the Company shall liquidate and
wind up its affairs in accordance with Section 12.2. If such an election is made within the
Reconstitution Period, then:
(i) The reconstituted limited liability company shall continue until the
occurrence of a Dissolution Event as provided in Section 12.1 (a); and
(ii) Unless otherwise agreed to by all of the Members, the Certificate and this
Agreement shall automatically constitute the Certificate and Agreement of such new Company.
All of the assets and liabilities of the dissolved Company shall be deemed to have been
automatically assigned, assumed, conveyed and transferred to the new Company. No bond,
collateral, assumption or release of any Members or the Companys liabilities shall be
required;
provided that the right of the Members to select successor Managers and to reconstitute and
continue the business of the Company shall not exist and may not be exercised unless the Company
has received an opinion of counsel selected by AWP reasonably satisfactory to the Special Purpose
Manager that the exercise of the right would not result in the loss of limited liability of any
Member and neither the Company nor the reconstituted limited
- 40 -
liability company would cease to be treated as a partnership for federal income tax purposes
upon the exercise of such right to continue and that none of the Members or their Affiliates
would recognize gain or taxable income upon such reconstitution.
12.2 Winding Up.
Upon the occurrence of (i) a Dissolution Event or (ii) the determination by a court of
competent jurisdiction that the Company has dissolved prior to the occurrence of a Dissolution
Event (unless the Company is reconstituted pursuant to Section 12.1 (b) hereof), the Company shall
continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its
assets, and satisfying the claims of its creditors and Members, and no Manager or Member shall take
any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the
Companys business and affairs; provided that all covenants contained in this Agreement and
obligations provided for in this Agreement shall continue to be fully binding upon the Managers and
Members until such time as the Properties have been distributed pursuant to this Section 12.2 and
the Certificate has been canceled pursuant to the Act. The Liquidator shall be responsible for
overseeing the winding up and dissolution of the Company, which winding up and dissolution shall be
completed within ninety (90) days of the occurrence of the Dissolution Event or within ninety (90)
days after the last day on which the Company may be reconstituted pursuant to Section 12.1(b)
hereof, as the case may be. The Liquidator shall take full account of the Companys liabilities and
Properties and shall cause the Properties or the proceeds from the sale thereof (as determined
pursuant to Section 12.10), to the extent sufficient therefor, to be applied and distributed, to
the maximum extent permitted by law, in the following order:
(a) First, to creditors (including Members and Managers who are creditors, including pursuant
to Section 5.4, to the extent otherwise permitted by law) in satisfaction of all of the Companys
Debts and other liabilities including any claims and obligations as required by Section 18-804(b)
of the Act (whether by payment or the making of reasonable provision for payment thereof), other
than liabilities for which reasonable provision for payment has been made and liabilities for
distribution to Members and former Members under Section 18-601 or 18-604 of the Act;
(b) Second, to Members and former Members of the Company in satisfaction of liabilities for
distribution under Sections 18-601 or 18-604 of the Act; and
(c) The balance, if any, to the Members in accordance with the positive balances in their
Capital Accounts, after giving effect to all contributions, distributions and allocations for all
periods.
No Member or Manager shall receive additional compensation for any services performed pursuant to
this Article XII.
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12.3 Alternative Methods of Distributions.
(a) In the discretion of the Liquidator, a pro rata portion of the distributions that may
otherwise be made to the Members pursuant to this Article XII may be:
(i) Distributed to a trust established for the benefit of the Members for the
purposes of liquidating Company assets, collecting amounts owed to the Company, and paying
any contingent or unforeseen liabilities or obligations of the Company. The assets of any
such trust shall be distributed to the Members from time to time, in the reasonable
discretion of the Liquidator subject to Section 12.2(a), in the same proportions as the
amount distributed to such trust by the Company would otherwise have been distributed to the
Members pursuant to Section 12.2; or
(ii) Withheld to provide a reasonable reserve for Company liabilities (contingent
or otherwise); provided that such withheld amounts shall be distributed to the Members as
soon as practicable.
The portion of the distributions that would otherwise have been made to each Member that is instead
withheld to provide a reserve pursuant to Section 12.3(a) shall be determined in the same manner as
the expense or deduction would have been allocated if the Company had realized an expense equal to
such amounts immediately prior to distributions being made pursuant to Section 12.2.
12.4 Rights of Members.
Except as otherwise provided in this Agreement, each Member shall look solely to the
Properties of the Company for the return of its Capital Contribution. If the assets of the Company
remaining after payment or discharge of the debts or liabilities of the Company are insufficient to
return such Capital Contribution, the Members shall have no recourse against the Company or any
other Member or Manager.
12.5 Notice of Dissolution/Termination.
(a) In the event a Dissolution Event occurs [or an event occurs that would, but for provisions
of Section 12.1, result in a dissolution of the Company], the Manager shall, within thirty (30)
days thereafter, provide written notice thereof to each Member and to all other parties with whom
the Company regularly conducts business (as determined in the discretion of the Manager) and shall
publish notice thereof in a newspaper of general circulation in each place in which the Company
regularly conducts business (as determined in the discretion of the Manager).
(b) Upon completion of the distribution of the Companys Properties as provided in this
Article XII, the Company shall be terminated, and the Liquidator shall
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cause the filing of the Certificate of Cancellation pursuant to Section 18-203 of the Act and shall
take all such other actions as may be necessary to terminate the Company.
12.6 Allocations During Period of Liquidation.
During the period commencing on the first day of the Allocation Year during which a
Dissolution Event occurs and ending on the date on which all of the assets of the Company have been
distributed to the Members pursuant to Section 12.2 (the
Liquidation Period), the Members shall
continue to share Profits, Losses, gain, loss and other items of Company income, gain, loss or
deduction in the manner provided in Article III hereof but no distributions shall be made to the
Members during such Liquidation Period other than in accordance with Section 12.2.
12.7 Character of Liquidating Distributions.
All payments made in liquidation of the interest of a Member in the Company shall be
made in exchange for the interest of such Member in Properties pursuant to Section 736(b)(l) of the
Code, including the interest of such Member in the goodwill of the Company.
12.8 The Liquidator.
(a) Definition. The Liquidator shall mean the Manager or if the Manager is unable or
unwilling to assume the responsibilities of the Liquidator, then the Liquidator shall be a Person
elected by the Members holding a majority of the Interest based on the balance of each Members
Capital Account as of the close of business the day before the day of determination.
(b) Fees. If the Liquidator is other than the Manager, the Company is authorized to pay a
reasonable fee to the Liquidator for its services performed pursuant to this Article XII and to
reimburse the Liquidator for its reasonable costs and expenses incurred in performing those
services.
(c) Indemnification. Subject to Section 7.2, the Company shall indemnify, save harmless, and
pay all judgments and claims against such Liquidator (other than the Manager which shall be
indemnified under Section 7.1) or any officers, directors, agents or employees of such Liquidator
relating to any Damages incurred by reason of any act performed or omitted to be performed by such
Liquidator, or any officers, directors, agents or employees of such Liquidator in connection with
the liquidation of the Company, including reasonable attorneys fees incurred by such Liquidator,
officer, director, agent or employee in connection with the defense of any action based on any such
act or omission, which attorneys fees may be paid as incurred, except to the extent
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such liability or damage is caused by the fraud, intentional misconduct of, or a knowing violation
of the laws by, such Liquidator which was material to the cause of action.
12.9 Form of Liquidating Distributions.
For purposes of making distributions required by Section 12.2 hereof, the Liquidator may
determine whether to distribute all or any portion of the Properties in-kind or to sell all or any
portion of the Properties and distribute the proceeds therefrom.
ARTICLE XIII
CERTAIN REPRESENTATIONS AND COVENANTS
Each Member and its Permitted Transferee represents and covenants to the Company and the
other Members as follows:
13.1 The Member (A) is an Accredited Investor, (B) is aware that the sale of the Interest to
it is being made in reliance on the exemption from registration provided by Section 4(2) of the
Securities Act and (C) is acquiring the Interest for its own account by exercising its sole
investment discretion. The Member has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment in the Interest, and
the Member is able to bear the economic risk of its investment indefinitely.
13.2 The Member understands that the Interest is being offered only in a transaction not
involving any public offering in the United States within the meaning of the Securities Act, the
Interest has not been and will not be registered under the Securities Act, and, if in the future
the Member decides to offer, resell, pledge or otherwise transfer the Interest, such Interest may
be offered, resold, pledged or otherwise transferred only in accordance with the legend set forth
on the cover of this Agreement. The Member acknowledges that no representation is made by the
Company, other Members, the Manager or the Special Purpose Manager, as to the availability of any
exemption under the Securities Act or any state securities laws for resale of the Interest.
13.3 The Member understands that an investment in the Interest involves certain risks,
including the risk of loss of a substantial part of its investment under certain circumstances. The
Member has had access to such financial and other information concerning the Company, other
Members, the Manager or the Special Purpose Manager, and the Interest as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its purchase of the
Interest, including an opportunity to ask questions of and request information from the Company.
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13.4 In connection with the purchase of the Interest: (i) none of the Company, other Members,
the Manager or the Special Purpose Manager is acting as a fiduciary or financial or investment
adviser for the Member; (ii) the Member is not relying (for purposes of making any investment
decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the
Company, other Members, the Manager or the Special Purpose Manager other than those set forth in
this Agreement; (iii) none of the Company, other Members, the Manager or the Special Purpose
Manager has given to the Member (directly or indirectly through any other person) any assurance,
guarantee, or representation whatsoever as to the expected or projected success, profitability,
return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax,
financial, accounting, or otherwise) of its purchase or the documentation for the Interest; (iv)
the Member has consulted with its own legal, regulatory, tax, business, investment, financial, and
accounting advisers to the extent it has deemed necessary, and it has made its own investment
decisions (including decisions regarding the suitability of any transaction pursuant to the
documentation for the Interest) based upon its own judgment and upon any advice from such advisers
as it has deemed necessary and not upon any view expressed by the Company, other Members, the
Manager or the Special Purpose Manager; (v) the Member is purchasing the Interest with a full
understanding of all of the terms, conditions and risks thereof (economic and otherwise), and it is
capable of assuming and willing to assume (financially and otherwise) those risks; and (vi) the
Member is a sophisticated investor familiar with transactions similar to its investment in the
Interest.
13.5 The Member understands that the Interest may not at any time be held by or on behalf of a
Person that is not an Accredited Investor.
13.6 The Member will not, at any time, offer to buy or offer to sell the Interest by any form
of general solicitation or advertising, including, but not limited to, any advertisement, article,
notice or other communication published in any newspaper, magazine or similar medium or broadcast
over television or radio or seminar or meeting whose attendees have been invited by general
solicitations or advertising.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices.
Any notice, payment, demand, or communication required or permitted to be given by any
provision of this Agreement shall be in writing and shall be deemed to have been given for all
purposes when the same is actually received, and shall be addressed as
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follows, or to such other address as such Person may from time to time specify by notice to the
Members and the Managers:
|
(a) |
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If to the Company, to the address determined pursuant to Section 1.4; |
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(b) |
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If to a Member, to the address set forth in Section 2.1; and |
|
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(c) |
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If to the Manager: |
|
|
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Allied Waste North America, Inc.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention: General Counsel
|
|
|
|
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With copies to: |
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Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10006
Attention: Craig Miller |
14.2 Binding Effect.
Except as otherwise provided in this Agreement, every covenant, term, and
provision of this Agreement shall be binding upon and inure to the benefit of the Managers
and Members and their respective successors, transferees and assigns.
14.3 Construction.
Every covenant, term, and provision of this Agreement shall be construed simply
according to its fair meaning and not strictly for or against any Member or Manager.
14.4 Headings.
Section and other headings contained in this Agreement are for reference purposes only
and are not intended to describe, interpret, define, or limit the scope, extent, or intent of this
Agreement or any provision hereof.
14.5 Severability.
Except as otherwise provided in the succeeding sentence, every provision of this
Agreement is intended to be severable, and, if any term or provision of this Agreement is illegal
or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity
or legality of the remainder of this Agreement. The preceding sentence of
- 46 -
this Section 13.5 shall be of no force or effect if the consequence of enforcing the remainder of
this Agreement without such illegal or invalid term or provision would be to cause any Member or
Manager to lose the material benefit of its economic bargain.
14.6 Incorporation by Reference.
Every exhibit, schedule, and other appendix attached to this Agreement and referred to
herein is not incorporated in this Agreement by reference unless this Agreement expressly
otherwise provides.
14.7 Governing Law.
The laws of the State of Delaware without regard to its conflict of law principles shall
govern the validity of this Agreement, the construction of its terms, and the interpretation of the
rights and duties arising hereunder.
14.8 Waiver of Jury Trial.
Each of the Members irrevocably waives to the extent permitted by law, all rights to trial by
jury and all rights to immunity by sovereignty or otherwise in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
14.9 Counterpart Execution.
This Agreement may be executed in any number of counterparts with the same effect as if all of
the Members and Managers had signed the same document. All counterparts shall be construed together
and shall constitute one agreement.
14.10 Specific Performance.
Each Member and Manager agrees with each Member and Manager that the Members and Managers
would be irreparably damaged if the provisions of this Agreement are not performed in accordance
with their specific terms and that monetary damages would not provide an adequate remedy in such
event. Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching
Members and Managers may be entitled, at law or in equity, the nonbreaching Members and Managers
shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and
specifically to enforce the terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having subject matter jurisdiction thereof.
14.11 Consent to Jurisdiction.
Each Member and Manager (i) irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York and any New York
- 47 -
State Court located in the Borough of Manhattan in New York City and of any appellate court from
any thereof in any action arising out of this Agreement, (ii) agrees that all claims in such action
may be decided in such court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum, and (iv) consents to the service of process by mail. A final
judgment in any such action shall be conclusive and may be enforced in other jurisdictions.
14.12 Nature of Interest.
Each Member, the Manager and the Special Purpose Manager acknowledges and agrees that
each Interest is a security governed by Article 8 of the UCC.
IN
WITNESS WHEREOF, the parties have executed and entered into this Limited Liability Company
Agreement of the Company as of the day first above set forth.
[signatures follow on separate pages]
- 48 -
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American Ref-Fuel Company of Essex County,
as Member
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By: |
/s/ William R. Reynolds
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Name: |
William R. Reynolds |
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Title: |
Vice President-treasurer |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF E
LEASING COMPANY, LLC.
- 49 -
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Allied Waste North America, Inc., as Member
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By: |
/s/ Steve Helms
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Name: |
Steve Helms |
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Title: |
Secretary |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF E LEASING COMPANY, LLC
AND IS EXECUTED BY THE PARTY NAMED ABOVE IN ITS CAPACITY AS A MEMBER.
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Allied Waste North America, Inc.,
as Manager
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By: |
/s/ Steve Helms
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Name: |
Steve Helms |
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Title: |
Secretary |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF E LEASING COMPANY, LLC.
- 51 -
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American Ref-Fuel Company of Essex County,
as Special Purpose Manager
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By: |
/s/ William R. Reynolds
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Name: |
William R. Reynolds |
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Title: |
Vice President-treasurer |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF E LEASING
COMPANY, LLC.
- 52 -
FIRST AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
E LEASING COMPANY, LLC
THIS FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT OF E LEASING COMPANY, LLC (this
Amendment) is made and entered into effective as of May 1, 2002, by and between Allied Waste
North America, Inc., a Delaware corporation (Allied), and BFI Energy Systems of Essex County,
Inc., a New Jersey corporation (BFI Essex).
RECITALS
WHEREAS, E Leasing Company, LLC (the Company) was formed as a Delaware limited
liability company upon the filing of its Certificate of Formation with the Secretary of State of
the State of Delaware on December 14, 2000. The business and affairs of the Company, and the
rights, privileges, duties, obligations and relationship of its Members are governed by that
certain Limited Liability Company Agreement of E Leasing Company, LLC dated effective as of April
30, 2001 (the Operating Agreement). Unless otherwise defined herein, capitalized terms
used in this Amendment shall have the meanings given those terms in the Operating Agreement;
WHEREAS, pursuant to a Permitted Transfer effective April 30, 2002, American Ref-Fuel Company
of Essex County, a New Jersey general partnership (Ref-Fuel Company), transferred to BFI
Essex all of its Interest in the Company, with BFI Essex thereby becoming a substituted Member
with respect to such Interest; and
WHEREAS, the parties desire to amend certain provisions of the Operating Agreement as
described herein.
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and
other good and valuable consideration, received to the full satisfaction of each of them, the
parties agree as follows:
AGREEMENT
1. Substituted Member. Each and every instance where the name American Ref- Fuel
Company of Essex County, a New Jersey general partnership appears in the Operating Agreement is
hereby amended to read BFI Energy Systems of Essex County, Inc., a New Jersey corporation.
Except as contained in Section 2.1 of the Operating Agreement, each and every instance where the
name American Ref-Fuel Company of Essex County appears in the Operating Agreement is hereby
amended to read BFI Energy Systems of Essex County, Inc. Each and every instance where the
defined term Ref-Fuel Company appears in the Operating Agreement is hereby amended to read BFI
Essex.
2. Amendment of Section 1.3(a). Section 1.3(a) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(a) The purposes of the Company are limited solely (i) to acquiring, owning,
leasing, managing, conserving, maintaining, protecting, servicing and selling, transferring,
pledging or hypothecating or otherwise disposing of investments in Garbage Trucks and Other
Assets which, when held by the Company shall be held by the Company solely for lease to
third parties, (ii) to lending Company funds, in excess of funds necessary to pay
liabilities, to the Companys Affiliates on terms no less favorable to the Company than
those that would have been entered into with unrelated third parties, (iii) to acquiring,
owning, holding, investing, reinvesting, selling, encumbering and otherwise dealing with
personal property of every kind and description, and (iv) to engaging in activities
incidental to the purposes set forth in clauses (i), (ii) and (iii).
3. Amendment of Section 1.10. Section 1.10 of the Operating Agreement is hereby
amended as follows:
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a. |
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The definition of Affiliate is hereby amended in its entirety
to read as follows: |
Affiliate means, with respect to any Person, an affiliate within
the meaning of Rule 12b-2 of the Securities Exchange Act of 1934, as
amended.
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The definition of Call Option is hereby deleted in its entirety. |
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c. |
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The definition of Liquidation Period is hereby amended in its
entirety to read as follows: |
Liquidation Period has the meaning set forth in Section 12.6.
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The definition of Liquidator is hereby amended in its
entirety to read as follows: |
Liquidator has the meaning set forth in Section 12.8(a).
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The definition of Put Option is hereby deleted in its entirety. |
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f. |
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The definition of Redemption is hereby deleted hi its entirety. |
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g. |
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The definition of Responsible Administrative Officers is
hereby amended in its entirety to read as follows: |
Responsible Administrative Officers has the meaning set forth in
Section 5.4(c).
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The definition of Responsible Participating Officers is
hereby amended in its entirety to read as follows: |
Responsible Participating Officers has the meaning set forth in
Section 5.4(c).
2
4. Amendment of Section 2.1. A new footnote is hereby added to Section 2.1 of the
Operating Agreement immediately following the reference to American Ref-Fuel Company of Essex
County, which footnote shall read as follows:
1 Pursuant to a Permitted Transfer effective as of April 30, 2002,
American Ref-Fuel Company of Essex County, a New Jersey general partnership, transferred
its entire Interest in the Company to BFI Energy Systems of Essex County, Inc. Concurrently
with such Permitted Transfer, BFI Energy Systems of Essex Country, Inc. was admitted as a
substituted Member of the Company. The address of BFI Energy Systems of Essex County, Inc.
is 15880 North Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, Attention:
General Counsel, Facsimile No.: (480) 627-2703.
5. Amendment of Section 3.3(b). The reference to Section 3.3(a) in the last sentence
of Section 3.3(b) of the Operating Agreement is hereby amended to read Section 3.3(b).
6. Amendment of Section 3.3(c). The reference to Section 3.3(b) in the last sentence
of Section 3.3(c) of the Operating Agreement is hereby amended to read Section 3.3(c).
7. Amendment of Section 3.3(d). The two references to Section 3.3(c) in Section
3.3(d) of the Operating Agreement are each hereby amended to read Section 3.3(d).
8. Amendment of last subsection of Section 3.3. The caption for the last subsection of
Section 3.3 of the Operating Agreement is hereby amended to read (e) Gross Income Allocation. The
two references to Section 3.3(d) in the last subsection of Section 3.3 of the Operating Agreement
are each hereby amended to read Section 3.3(e).
9. Amendment of Section 3.4. The first sentence of Section 3.4 of the Operating
Agreement is hereby amended in its entirety to read as follows:
The allocations set forth in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d) and
3.3(e) (the Regulatory Allocations) are intended to comply with certain
requirements of the Regulations.
10. Amendment of Section 3.5(a). Section 3.5(a) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(a) For purposes of determining the Profits, Losses, or any other items allocable to
any period, Profits, Losses and any such other items shall be determined on a daily, monthly
or other basis, as determined by the Tax Matters Member using any permissible method under
Code Section 706 and the Regulations thereunder.
11. Amendment of Section 4.1. Section 4.1 of the Operating Agreement is hereby
amended in its entirety to read as follows:
4.1 Distributions. The Company shall make distributions to the Members, pro rata in
accordance with their Percentage Interests, in such amounts and at such times as the
Manager and the Special Purpose Manager shall unanimously agree.
3
12. Amendment of Section 5.4(a). Section 5.4(a) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(a) The Manager and Special Purpose Manager shall cause the Company to conduct its
business and operations separate and apart from that of any Member, the Manager, the
Special Purpose Manager or any of their Affiliates, including, without limitation, (i)
maintaining books and financial records of the Company separate from the books and
financial records of any Member, the Manager, the Special Purpose Manager or any of their
Affiliates, and observing all Company procedures and formalities, including, without
limitation, maintaining minutes of Company meetings and acting on behalf of the Company
only pursuant to authorization of the Members as required under this Agreement, (ii)
causing the Company to pay its liabilities only from available assets of the Company, and
(iii) causing the Company to conduct its dealings with third parties in its own name and as
a separate and independent entity.
13. Amendment of Section 5.4(e). Section 5.4(e) of the Operating Agreement is hereby
amended in the entirety to read as follows:
(e) [Intentionally deleted].
14. Amendment of Section 6.2(d). The reference to Section 6.3 in Section 6.2(d) of the
Operating Agreement is hereby amended to read Section 6.2. The reference to Section 13.1 in
Section 6.2(d) of the Operating Agreement is hereby amended to read Section 14.1.
15. Amendment of Section 6.9(b). Section 6.9(b) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(b) [Intentionally deleted].
16. Amendment
of Section 6.9(j). Section 6.9(j) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(j) [Intentionally deleted].
17. Amendment of Section 8.2(b). Section 8.2(b) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(b) Reports. The Manager and the Special Purpose Manager, as the case may be, shall
cause to be delivered to each Member such reports as any Member may reasonably request from
time to time.
18. Amendment of Section 8.3(a). The first sentence of Section 8.3(a) of the
Operating Agreement is hereby amended to read as follows:
The Tax Matters Member shall be permitted to, without any further consent of the
Members being required (except as specifically required herein) but after first obtaining
the prior written consent of the Special Purpose Manager, make any and all elections at its
sole discretion for federal, state and local tax purposes.
4
19. Amendment of Section 10.2(b). Section 10.2(b) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(b) BFI Essex. Subject to the conditions and restrictions set forth in Section 10.3,
BFI Essex and any of its successors or transferees may at any time Transfer all or any
portion of its Interest to (a) any of its Affiliates, or (b) any Person approved by all of
the Members.
20. Amendment of Section 10.2(c). Section 10.2(c) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(c) [Intentionally deleted].
21. Amendment of Section 10.3. The first paragraph of Section 10.3 of the Operating
Agreement is hereby amended to read as follows:
A Transfer shall not be treated as a Permitted Transfer under Section 10.2 hereof
unless and until the following conditions are satisfied:
22. Amendment of Section 14.1. Clause (c) of Section 14.1 of the Operating
Agreement is hereby amended to read as follows:
(c) If to the Manager:
Allied Waste North America, Inc.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention: General Counsel.
23. Amendment of Section 14.11. Clause (i) of Section 14.11 of the Operating
Agreement is hereby amended to read as follows:
(i) irrevocably submits to the exclusive jurisdiction of the United States District
Court for the District of Arizona and any Arizona State Court located in Maricopa County,
Arizona and of any appellate court from any thereof in any action arising out of this
Agreement,.
24. Effect of this Amendment. Except as expressly set forth in this Amendment, all
other terms and provisions of the Operating Agreement remain in full force and effect.
25. Execution in Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which together shall constitute
but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
5
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of
the date first written above by their respective officers thereunto duly authorized. |
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Allied Waste North America, Inc. |
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By:
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/s/ Donald W. Slager |
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Its:
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Vice President, Operations |
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BFI Energy Systems of Essex County, Inc. |
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By:
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/s/ Donald W. Slager |
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Its:
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President |
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Approved as to form:
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/s/ Jo Lynn White
Jo Lynn White, Counsel
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6
exv3w455
Exhibit 3.455
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MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU |
Date Received |
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(FOR BUREAU USE ONLY) |
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JUL 12 1994 |
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FILED
JUL 12 1994 |
Name |
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Silverman, Rodbard & Smith, P.C. |
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Administrator |
Address
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MICHIGAN DEPARTMENT OF COMMERCE |
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606 Comerica Building |
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Corporation & Securities Bureau |
City |
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State |
ZIP Code |
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EFFECTIVE DATE: |
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Kalamazoo, MI 49007 |
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DOCUMENT WILL BE RETURNED TO NAME AND ADDRESS INDICATED ABOVE
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CORPORATE IDENTIFICATION NUMBER |
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1 |
4 |
0 |
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2 |
5 |
7 |
ARTICLES OF INCORPORATION
These Articles of Incorporation are signed by the incorporator to form a profit corporation
under the Michigan Business Corporation Act (MBCA), Act 284, Public Acts of 1972 as amended:
ARTICLE I
The name of the corporation is EAGLE INDUSTRIES LEASING, INC.
ARTICLE II
The purpose or purposes for which the corporation is formed is to engage in any activity
within the purposes for which corporations may be formed under the
MBCA.
ARTICLE III
The total authorized shares is 60,000 shares of common stock. Each share is entitled to one
vote on all matters submitted to the shareholders of the corporation, and each share shall have
all of the same rights and preferences as each other share.
ARTICLE IV
The holders of common stock of the corporation shall have a preemptive right, granted on
uniform terms and conditions prescribed by the board of directors to provide a fair and reasonable
opportunity to exercise the right, to acquire proportional amounts of the corporations unissued
shares of common stock when the board decides to issue them. A
shareholder may waive his or her preemptive right. A waiver evidenced by a writing is irrevocable
even though it is not supported by consideration.
There is no preemptive right with respect to:
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1. |
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shares issued as compensation to directors, officers, agents, or employees of
the corporation, its subsidiaries, or affiliates; |
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2. |
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shares issued to satisfy conversion or option rights created to
provide compensation to directors, officers, agents, or employees of the corporation,
its subsidiaries, or affiliates; |
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3. |
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shares authorized in the articles that are issued within six months from the
effective date of incorporation; |
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4. |
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shares issued other than for money; or |
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5. |
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shares of any class of capital stock of this corporation with preferential
rights to distributions or assets unless the shares with preferential rights are
convertible into or carry a right to subscribe for or acquire shares of common stock of
the corporation. |
Shares subject to preemptive rights that are not acquired by shareholders may be issued to
any person for a period of one year after being offered to shareholders at a consideration set by
the board that is not lower than the consideration set for the exercise of preemptive rights. An
offer at a lower consideration or after the expiration of one year is subject to the shareholders
preemptive rights.
For purposes of Article IV, shares includes a security convertible into or carrying a right
to subscribe for or acquire shares.
ARTICLE V
No director of the corporation shall be personally liable to the corporation or its
shareholders for monetary damages for a breach of fiduciary duty as a director, provided that the
foregoing shall not eliminate or limit the liability of a director for any of the following: (1) a
breach of the directors duty of loyalty to the corporation or its shareholders; (2) acts or
omissions not made in good faith or that involve intentional misconduct or a knowing violation of
law; (3) a violation of §551(1) of the MBCA, MCLA 450.1551(1), MSA 21.200(551)(1); or (4) a
transaction from which the director derived an improper personal benefit. If the MBCA is amended to
authorize the further elimination or limitation of the liability of directors, then the liability
of a director of the corporation, in addition to the limitation on personal liability contained in
these articles of incorporation, shall be eliminated or limited to the fullest extent permitted by
the MBCA as so amended. No amendment or repeal of article V shall apply to or have any effect on
the liability or alleged liability of any director of the corporation for or with respect to any
acts or omissions of any director occurring before the effective date of any such amendment or
repeal.
ARTICLE VI
Any action required or permitted by the MBCA to be taken at an annual or special shareholders
meeting may be taken without a meeting, without prior notice, and without a
2
vote, if consents in writing, setting forth the action so taken, are signed by the holders of
outstanding shares having not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares are entitled to vote on the action
were present and voted. The written consents shall bear the date of signature of each shareholder
who signs the consent. No written consents shall be effective to take the corporate action referred
to unless, within 60 days after the record date for determining shareholders entitled to express
consent to or dissent from a proposal without a meeting, written consents signed by a sufficient
number of shareholders to take the action are delivered to the corporation. Delivery shall be to
the corporations registered office, to its principal place of business, or to an officer or agent
of the corporation having custody of the minutes of the proceedings of its shareholders. Delivery
made to a corporations registered office shall be by hand or by certified or registered mail,
return receipt requested. Prompt notice of the corporate action taken without a meeting by less
than unanimous written consent shall be given to shareholders who have not consented in writing.
ARTICLE VII
The corporation shall not be subject to Chapter 7A, relating to certain business
combinations, or to Chapter 7B, relating to control share acquisitions, of the MBCA as now in
effect or later amended.
ARTICLE VIII
The address of the initial registered office is: 606 Comerica Building, Kalamazoo, Michigan
49007. The name of the initial resident agent at the registered office is Alan H. Silverman.
ARTICLE IX
The name and address of the incorporator is: Alan H. Silverman, 606 Comerica Building,
Kalamazoo, Michigan 49007.
ARTICLE X
These Articles of Incorporation shall be effective when filed.
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Dated: 6/30/94 |
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/s/ Alan H. Silverman
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Alan H. Silverman |
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3
exv3w456
Exhibit 3.456
AMENDED AND RESTATED BYLAWS
OF
EAGLE INDUSTRIES LEASING, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders,
the Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
9
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall
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be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w457
Exhibit 3.457
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 07:00 PM 10/01/2008 |
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FILED 06:42 PM 10/01/2008 |
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SRV 081005434 - 4607547 FILE |
CERTIFICATE OF INCORPORATION
OF
EAST CHICAGO COMPOST FACILITY, INC.
* * * * *
1. The name of the corporation is East Chicago Compost Facility, Inc. (the
Corporation).
2. The address of the registered office of the Corporation in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The name of its registered agent at such address is The Corporation
Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the State
of Delaware (the DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares,
no par value.
5. The name and mailing address of the incorporator are as follows:
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NAME |
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MAILING ADDRESS |
Jo Lynn White
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18500 North Allied Way Phoenix, Arizona 85054 |
The powers of the incorporator shall terminate upon the filing of this
Certificate of Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
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NAME |
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MAILING ADDRESS |
Donald W. Slager
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18500 North Allied
Way Phoenix, AZ 85054 |
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Michael S. Burnett
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18500 North Allied Way Phoenix, AZ 85054 |
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Denise R. Danner
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18500 North Allied Way Phoenix, AZ 85054 |
7. In furtherance and not in limitation of the powers conferred by statute, the
Board of Directors shall have the power to make, alter, amend, change, add to or repeal
the bylaws of the Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by statute.
10. A director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director of the
benefits hereof with respect to any act or omission occurring prior to such amendment or repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its creditors or
any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8
of the DGCL or on the application of trustees in dissolution or of any receiver or receivers
appointed for the Corporation under the provisions of Section 279 of Title 8 of the DGCL, order a
meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders
of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If
a majority in number representing three-fourths in value of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree
to any compromise or arrangement and to any reorganization of the Corporation, as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made, be binding on all
the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of
the Corporation, as the case may be, and also on the Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of
Incorporation to be duly executed this 1st day of October, 2008.
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/s/ Jo Lynn White
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Jo Lynn White, Incorporator |
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2
exv3w458
Exhibit 3.458
BYLAWS
OF
EAST CHICAGO COMPOST FACILITY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten (10) (unless a longer period is required by law) nor more
than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
3
Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
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proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to
6
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to
11
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the power
or the obligation to indemnify him against such liability under the provisions of this Article
VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w459
Exhibit 3.459
CERTIFICATE OF INCORPORATION
OF
ECDC ENVIRONMENTAL OF HUMBOLDT COUNTY, INC.
1. The name of the Corporation is ECDC Environmental of Humboldt County, Inc. (the
Corporation).
2. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at that address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares, one cent
($0.01) par value.
5. The name and mailing address of the incorporator are as follows:
Steven M. Helm
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers of the incorporator shall terminate upon the filing of this Certificate of
Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
James Eng
G. Thomas Rochford, Jr.
Don Slager
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
9. The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when
such liability is determined. No amendment or repeal of this provision shall deprive a director of
the benefits hereof with respect to any act or omission occurring prior to such amendment or
repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its
creditors or any class of them and/or between the Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of Delaware may, on the application in
a summary way of the Corporation or of any creditor or stockholder thereof, or on the application
of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver
or receivers appointed for the Corporation under the provision of
Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to
be summoned in such
manner as the said court directs. If a majority in number representing three-fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation, as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all
the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
IN WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 1st day of April, 1998.
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/s/ Steven M. Helm
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Steven M. Helm, Incorporator |
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2
exv3w460
Exhibit 3.460
BYLAWS
OF
ECDC ENVIRONMENTAL OF HUMBOLDT COUNTY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the State of Delaware as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
outside of the State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to
be taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the
votes entitled to be cast by the holders of all the then issued and outstanding shares of common
stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the Board of Directors
then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or without the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation
for their reasonable out-of-pocket expenses incurred in connection with attached at Board
stockholder meetings, and shall receive such other compensation as determined by the stockholders
from time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Vice President of the Vice Presidents if there are more than one (in the
order designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition
of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar other than the
Corporation or its employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to
any director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Written notice may also be
given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal,
Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant to this
Article VIII shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any Bylaw, agreement, contract,
vote of stock holders or disinterested directors or pursuant to the direction (howsoever embodied)
of any court of competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any person who is not specified in Section 1 or
Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w461
Exhibit 3. 461
[ILLEGIBLE]
ARTICLES OF ORGANIZATION
OF ECDFP, L.C.
The undersigned persons, acting as organizers and members of a limited liability
company formed under the Utah Limited Liability Company Act, as
codified at § 48-2b-101, et seq. of
the Utah Code Ann., as amended to date, hereby adopt the following Articles of Organization
for such company:
ARTICLE I
The name of the company is ECDFP, L.C.
ARTICLE II
The period of the companys duration shall commence on the date of the filing of these
Articles of Organization with the Division of Corporations and Commercial Code for the State of
Utah, and shall continue until December 31, 2020, unless terminated earlier upon the occurrence of
any of the following events:
(a) The written agreement of the greater of (i) the
members of the company entitled to receive a majority of the
profits of the company, except as otherwise provided in the
operating agreement of the company, or (ii) the members necessary
to not adversely affect, for federal income tax purposes, the
classification of the company as other than an association
taxable as a corporation; or
(b) The death, retirement, resignation, expulsion,
bankruptcy or dissolution of a member, or upon the occurrence of
any other event that terminates the continued eligibility for
membership of a member in the company, unless the business of the
company is continued, within 90 days after the event of termination, pursuant to the
affirmative vote of the lesser of (i) all of the remaining members, or (ii) such lesser percentage
of the members as shall not adversely affect, for federal income tax purposes, the treatment of the
company as other than an association taxable as a corporation; or
(c) When the company is not the successor limited liability company in any merger or
consolidation of the two or more limited liability companies.
ARTICLE III
The purpose or purposes for which the company is organized are:
(a) To acquire, hold and operate assets utilized in
the waste treatment, disposal or storage businesses.
(b) To lease, buy and hold, to sell, mortgage,
exchange, assign and otherwise dispose of, to improve, manage,
contain, conserve, and operate, and generally to trade and deal
in and with, as principal or agent, and otherwise acquire, invest
in or hold, improved and unimproved real and personal property
and to do all things related thereto, including, but not limited
to, acting as a joint venturer, limited or general partner in
undertakings of all types.
(c) To acquire, own, operate and management, business
ventures of all types, through the ownership of assets, equity or
debt securities, joint venture interests, limited or general
partnership interests, or other evidences of ownership.
-2-
(d) To act as consultant or advisor, and to furnish
advice and counsel to individuals, corporations, partnerships and
other entities in connection with the manufacture and sale of
frozen yogurt and related products and in connection with the
acquisition, ownership, management, development or operation of
tangible or intangible property of all types.
(e) To engage in any and all other lawful acts that,
presently or in the future, may legally be performed by a limited
liability company organized under the laws of the State of Utah.
ARTICLE IV
The street address of the companys registered office in the State of Utah is 201
South Main Street, Suite 1800, Salt Lake City, Utah 84101. The name and street address of the
companys initial registered agent at such address in the State of Utah is J. Gordon Hansen, 201
South Main Street, Suite 1800, Salt Lake City, Utah 84101. By signing below, the initial
registered agent of the company acknowledges and accepts such position:
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/s/ J. Gordon Hansen
J. GORDON HANSEN
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-3-
ARTICLE V
The director of the Division of Corporations and Commercial Code for the
State of Utah is appointed as the agent for service of process on behalf of the
company if the agent specified in Article IV has resigned, such agents authority has
been revoked, or such agent cannot be found or served with the exercise of reasonable
diligence.
ARTICLE VI
The company shall be managed by a board of managers, who will be named by
the members, as set forth in the operating agreement for the company. The companys
initial managers will serve until their successors are duly named. The initial
manager, and their respective addresses, are as follows:
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NAME |
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ADDRESS |
J. Gordon Hansen
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201 South Main Street |
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Suite 1800 |
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Salt Lake City, UT 84101 |
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Robert C. Delahunty
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201 South Main Street |
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Suite 1800 |
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Salt Lake City, UT 84101 |
ARTICLE VII
The names and addresses of the organizers of the company are as follows:
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NAME |
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ADDRESS |
J. Gordon Hansen
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201 South Main Street |
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Suite 1800 |
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Salt Lake City, Utah 84101 |
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Robert C. Delahunty
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210 South Main Street |
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Suite 1800 |
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Salt Lake City, Utah 84101 |
-4-
On this 31st day of December, 1992, the undersigned executed the foregoing Articles of
Organization of ECDFP, L.C. and swear, under penalty of perjury, that the facts stated in such
Articles are true.
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ECDFP, L.C.
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/s/ J. Gordon Hansen
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J. GORDON HANSEN |
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/s/ Robert C. Delahunty
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Robert C. Delahunty |
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-5-
[ILLEGIBLE]
AMENDED AND RESTATED ARTICLES OF ORGANIZATION
OF
ECDFP, L.C.
These Amended and Restated Articles of Organization of ECDFP, L.C., completely restate,
integrate and amend the Articles of Organization of ECDFP, L.C., as such Articles of Organization
were originally filed with the Division of Corporations and Commercial Code of the Department of
Commerce of the State of Utah
on December 31, 1992. These Amended and Restated Articles of
Organization of ECDFP, L.C. have been duly executed and filed in
accordance with the requirements of § 48-2b-101, et
seq., Utah Code Ann., as amended to date.
ARTICLE I
The name of the company is ECDFP, L.C.
ARTICLE II
The period of the companys duration shall commence on the date of the filing of the
companys original Articles of Organization with the Division of Corporations and Commercial Code
of the State of Utah, and shall continue until December 31, 2020, unless terminated earlier upon
the occurrence of any of the following events:
(a) The written agreement of the greater of (i) the members of the company entitled to
receive a majority of the profits of the company, except as otherwise provided in the operating
agreement of the company, or (ii) the members necessary
to not adversely affect, for federal income tax purposes, the classification of the company as
other than an association taxable as a corporation; or
(b) The death, retirement, resignation, expulsion,
bankruptcy or dissolution of a member, or upon the occurrence of
any other event that terminates the continued eligibility for
membership of a member in the company, unless the business of the
company is continued, within 90 days after the event of
termination, pursuant to the affirmative vote of the lesser of
(i) all of the remaining members, or (ii) such lesser percentage of
the members as shall not adversely affect, for federal income tax
purposes, the treatment of the company as other than an association
taxable as a corporation; or
(c) When the company is not the successor limited
liability company in any merger or consolidation of two or more
limited liability companies.
ARTICLE III
The purpose or purposes for which the company is organized are:
(a) To acquire, hold and operate assets utilized in the
waste treatment, disposal or storage business.
(b) To lease, buy and hold, sell, mortgage, exchange,
assign and otherwise dispose of, and to improve, manage, contain,
conserve, operate, and generally to trade and deal in and with, as
principal or agent, and to otherwise acquire, invest in or hold,
improved and unimproved real and personal property and to do all
2
things
related thereto, including, but not limited to, acting as a shareholder, joint venturer, or
limited or general partner in undertakings of all types.
(c) To acquire, own, operate and manage business
ventures of all types, through the ownership of assets, equity or
debt securities, joint venture interests, limited or general
partnership interests, or other evidences of ownership.
(d) To act as consultant or advisor, and to furnish
advice and counsel to individuals, corporations, partnerships and
other entities in connection with the acquisition, ownership,
management, development or operation of businesses and of tangible
or intangible property of all types.
(e) To engage in any and all other lawful acts that,
presently or in the future, may legally be performed by a limited
liability company organized under the laws of the State of Utah.
ARTICLE IV
The street address of the companys registered office in the State of Utah is 201 South
Main Street, Suite 1800, Salt Lake City, Utah 84147-0848. The name and street address of the
companys registered agent at such address in the State of Utah is J. Gordon Hansen, 201 South
Main Street, Suite 1800, Salt Lake City, Utah 84147-0848. By signing below, the registered agent
of the company acknowledges and accepts such position:
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/s/ J. Gordon Hansen
J. GORDON HANSEN
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3
ARTICLE V
The director of the Division of Corporations and Commercial Code for the State of Utah is
appointed as the agent for service of process on behalf of the company if the agent specified
in Article IV has resigned, such agents authority has been revoked, or such agent cannot be
found or served with the exercise of reasonable diligence.
ARTICLE VI
The company shall be managed by a board of managers, who will be named by the members, as
set forth in the operating agreement for the company. The managers of the company, who will
serve until their successors are duly named, and their respective addresses, are as follows:
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NAME |
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ADDRESS |
Robert S. Jackson
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515 West Greens Road, Suite 500 |
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Houston, Texas 77067 |
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John R. Brooks
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515 West Greens Road, Suite 500 |
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Houston, Texas 77067 |
On this 23rd day of March, 1993, the undersigned, acting in their capacities as the
initial managers of the company as named in the companys original Articles of Organization,
have executed these Amended and Restated Articles of Organization of ECDFP, L.C.
4
and swear, under penalty of perjury, that the facts stated in such
Amended and Restated Articles of Organization are true.
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/s/ J. Gordon Hansen
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J. GORDON HANSEN |
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/s/ Robert C. Delahunty
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ROBERT C. DELAHUNTY |
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5
[ILLEGIBLE]
AMENDED AND RESTATED ARTICLES OF ORGANIZATION
OF
ECDC ENVIRONMENTAL, L.C.,
FORMERLY ECDFP, L.C.
These Amended and Restated Articles of Organization of ECDC Environmental, L.C., completely
restate, integrate and amend the Articles of Organization of ECDFP, L.C., as such Articles of
Organization were originally filed with the Division of Corporations and Commercial Code of the
Department of Commerce of the State of Utah on December 31, 1992. These Amended and Restated
Articles of Organization of ECDFP, L.C. have been duly executed and filed in accordance with the
requirements of § 48-2b-10l, et seq., Utah Code Ann., as amended to date.
ARTICLE I
The name of the company is ECDC Environmental, L.C.
ARTICLE II
The period of the companys duration shall commence on the date of the filing of the
companys original Articles of Organization with the Division of Corporations and Commercial Code
of the State of Utah, and shall continue until December 31, 2020, unless terminated earlier upon
the occurrence of any of the following events:
(a) The written agreement of the greater of (i) the members of the company entitled to
receive a majority of the profits of the company, except as otherwise provided in the operating
agreement of the company, or (ii) the members necessary
to not adversely affect, for federal income tax purposes, the classification of the company as
other than an association taxable as a corporation; or
(b) The death, retirement, resignation, expulsion,
bankruptcy or dissolution of a member, or upon the occurrence of
any other event that terminates the continued eligibility for
membership of a member in the company, unless the business of the
company is continued, within 90 days after the event of
termination, pursuant to the affirmative vote of the lesser of
(i) all of the remaining members, or (ii) such lesser percentage of
the members as shall not adversely affect, for federal income tax
purposes, the treatment of the company as other than an association
taxable as a corporation; or
(c) When the company is not the successor limited
liability company in any merger or consolidation of two or more
limited liability companies.
ARTICLE III
The purpose or purposes for which the company is organized are:
(a) To acquire, hold and operate assets utilized in the
waste treatment, disposal or storage business.
(b) To lease, buy and hold, sell, mortgage, exchange,
assign and otherwise dispose of, and to improve, manage, contain,
conserve, operate, and generally to trade and deal in and with, as
principal or agent, and to otherwise acquire, invest in or hold,
improved and unimproved real and personal property and to do all
2
things related thereto, including, but not limited to, acting as a shareholder, joint venturer, or
limited or general partner in undertakings of all types.
(c) To acquire, own, operate and manage business
ventures of all types, through the ownership of assets, equity or
debt securities, joint venture interests, limited or general
partnership interests, or other evidences of ownership.
(d) To act as consultant or advisor, and to furnish
advice and counsel to individuals, corporations, partnerships and
other entities in connection with the acquisition, ownership,
management, development or operation of businesses and of tangible
or intangible property of all types.
(e) To engage in any and all other lawful acts that,
presently or in the future, may legally be performed by a limited
liability company organized under the laws of the State of Utah.
ARTICLE IV
The street address of the companys registered office in the State of Utah is 201 South
Main Street, Suite 1800, Salt Lake City, Utah 84147-0848. The name and street address of the
companys registered agent at such address in the State of Utah is J. Gordon Hansen, 201 South
Main Street, Suite 1800, Salt Lake City, Utah 84147-0848. By signing below, the registered agent
of the company acknowledges and accepts such position:
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/s/ J. Gordon Hansen
J. GORDON HANSEN
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3
ARTICLE V
The director of the Division of Corporations and Commercial Code for the State of Utah
is appointed as the agent for service of process on behalf of the company if the agent
specified in Article IV has resigned, such agents authority has been revoked, or such agent
cannot be found or served with the exercise of reasonable diligence.
ARTICLE VI
The company shall be managed by a board of managers, who will be named by the members,
as set forth in the operating agreement for the company. The managers of the company, who
will serve until their successors are duly named, and their respective addresses, are as
follows:
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NAME |
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ADDRESS |
Robert S. Jackson
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515 West Greens Road, Suite 500 |
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Houston, Texas 77067 |
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John R. Brooks
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515 West Greens Road, Suite 500 |
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Houston, Texas 77067 |
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R. Steve Creamer
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60 South 600 East, Suite 150
Salt Lake City, Utah 84102 |
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Douglas S. Foxley
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60 South 600 East, Suite 150 |
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Salt Lake City, Utah 84102 |
On
this 13th day of April, 1993, the undersigned, acting in its capacity as a
member of the company, has executed these Amended and Restated Articles of Organization of
ECDC Environmental, L.C. and swears, under penalty of perjury, that the
4
facts stated in such Amended and Restated Articles of Organization are true.
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RACT, INC. |
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By: |
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/s/ R. Steve Creamer |
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Print-Name: |
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R. Steve Creamer |
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Its: |
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[ILLEGIBLE] |
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5
RECEIVED
FEB 23 1998
Utah Div. of Corp. Comm. Code
EXPEDITE
AMENDED AND RESTATED ARTICLES OF ORGANIZATION
ECDC ENVIRONMENTAL, L.C.
Pursuant to Utah Code Ann. § 48-2b-136, these Amended and Restated Articles of
Organization for ECDC Environmental, L.C., a Utah limited liability company, are hereby duly
executed and filed:
1. Name. The name of the limited liability company formed by this instrument
is ECDC Environmental, L.C.
2. Duration. The latest date upon which the limited liability company is to
dissolve is December 31, 2050.
3. Business Purpose. The business purpose of the Corporation is to engage in any
lawful act or activity for which limited liability companies may be organized under the laws
of the State of Utah.
4. Registered Office. The address of the limited liability companys registered office
in Utah is 970 East Murray-Holladay Road, Suite 18, Salt Lake City, Utah 84117.
5. Registered Agent. The name and business address of the registered agent of the
limited liability company in Utah are CT Corporation System, 50 West Broadway, Salt Lake
City, Utah 84101.
6. Management. Management of the limited liability company is vested in its
member.
7. Name and Address of Member. The name and address of the limited liability
companys sole member are ECDC Holdings, Inc., 15880 N. Greenway-Hayden Loop, Suite
100, Scottsdale, Arizona 85260.
Dated as of December 19, 1997.
State of Utah
Department of Commerce
Division of Corporations and Commercial Code
I Hereby certify that the foregoing has been
filed and approved on the 23 day of [ILLEGIBLE] 1998
in the office of this Division and hereby issue this Certificate thereof.
Examiner [ILLEGIBLE] Date 2/24/98
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/s/ Korla T. Woods
KORLA T. WOODS
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Division Director |
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ECDC Holdings, Inc.,
a Delaware corporation
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By:
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/s/ D. W. Slager
D. W. Slager,
Executive Vice President
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exv3w462
Exhibit 3.462
AMENDED AND RESTATED OPERATING AGREEMENT
OF ECDC ENVIRONMENTAL, L.C.
This Amended and Restated Operating Agreement (the Agreement) of ECDC Environmental, L.C.
(the Company) is executed as of December 19, 1997, by ECDC Holdings, Inc., a Delaware
corporation, the sole member of the Company (the Member), and shall bind the Member, the
Company, and any other person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant
to the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is ECDC Environmental, L.C. All business of the
Company shall be conducted in the Company name. The Company shall hold its property in the name of
the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills and providing waste transportation services, and to
engage in any other activity permitted under Utah law and the laws of any jurisdiction in which the
Company may do business.
1.5 Office. The registered office of the Company within the State of Utah shall be
970 East Murray-Holladay Road, Suite 1B, Salt Lake City, Utah 84117. The registered office may be
changed to any other place within the State of Utah upon the consent of the Member. The Company may
maintain a registered office in any state within which it does business at any location approved by
the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Utah are CT Corporation System, 50 West
Broadway, Salt Lake City, Utah 84101. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles
of Organization deemed necessary by it to reflect amendments to this Agreement adopted by the
Member in accordance with the terms hereof.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are: ECDC Holdings, Inc., a
Delaware corporation, 15880 N. Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement, which is incorporated herein by this
reference. The Member shall not be obligated to make additional Capital Contributions to the
Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be determined by
the Member. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically and to
the Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the consent
or approval of the Member under this Agreement, shall be made within the sole discretion of the
Member. Any party dealing with the Company shall be permitted to rely absolutely on the signature
of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them herein or in resolutions duly adopted by the
Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be
2
otherwise signed and executed and except that the other officers of the Company may sign and
execute documents when so authorized by this Agreement, the Member, or the President. The President
shall also perform such other duties and may exercise such other powers as from time to time may be
assigned to him by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents if there are
more than one shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
3
faithful performance of the duties of his office and for the restoration to the Company, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform
such duties and have such powers as from time to time may be assigned to them by the Member. The
Member may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office
all accounts, books and other relevant Company documents. The books of account of the Company shall
be prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate
account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) December 31,
2050;
4
(b) The sale of all or substantially all of the Companys assets and the collection of
the proceeds of such sale;
(c) The election by the Member to dissolve the Company; or
(d) The entry of a decree of dissolution under § 48-2b-142 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of dissolution have been filed with
the Utah Secretary of State or until a decree dissolving the Company has been entered by a court of
competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act
pertaining to the winding up of the affairs of the Company and the final distribution of its
assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, articles of
dissolution shall be executed and filed by the Member with the Utah Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
7.3
Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
5
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person
or Persons may require.
7.5 Governing Law. The laws of the State of Utah shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Utah Limited Liability Company Act, as set forth in Utah Code Ann. Tit. 48, §
48-2b-101, et. seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Articles of Organization has the meaning given that term in Section 1.7 hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means ECDC Holdings, Inc.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Operating
Agreement is intended to or shall be for the benefit of any Person not a party hereto, and no such
other Person shall have any right or cause of action hereunder.
6
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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ECDC Holdings, Inc.,
a Delaware corporation |
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By: |
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/s/ D. W. Slager
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Its:
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Executive Vice President |
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7
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
ECDC Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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$ |
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100 |
% |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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8
exv3w463
Exhibit 3.463
CERTIFICATE OF INCORPORATION
OF
ECDC HOLDINGS, INC.
1. The name of the Corporation is ECDC Holdings, Inc. (the Corporation).
2. The address of the registered office of the Corporation in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares,
one cent ($0.01) par value.
5. The name and mailing address of the incorporator are as follows:
Steven M. Helm
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers
of the incorporator shall terminate upon the filing of this
Certificate of Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as
follows:
James Eng
G. Thomas Rochford, Jr.
Don Slager
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of
the
Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the
extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when
such
liability is determined. No amendment or repeal of this provision shall deprive a director
of the
benefits hereof with respect to any act or omission occurring prior to such amendment or
repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and
its creditors or any class of them and/or between the Corporation and its stockholders or any
class
of them, any court of equitable jurisdiction within the State of Delaware may, on the
application in
a summary way of the Corporation or of any creditor or stockholder thereof, or on the
application
of any receiver or receivers appointed for the Corporation under the provisions of Section 291
of
Title 8 of the Delaware Code or on the application of trustees in dissolution or of any
receiver or
receivers appointed for the Corporation under the provision of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the
stockholders or
class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or
class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as
the case
may be, agree to any compromise or arrangement and to any reorganization of the Corporation,
as
a consequence of such compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said application has been
made, be
binding on all the creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the Corporation.
IN
WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 19th day of November, 1997.
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/s/ Steven M. Helm
Steven M. Helm, Incorporator
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2
exv3w464
Exhibit 3.464
BYLAWS
OF
ECDC HOLDINGS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the State of Delaware as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Certificate
of Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders
may be called only by the Chairman of the Board, if there is one, the President, the Board of
Directors pursuant to a resolution adopted by a majority of the entire Board of Directors (whether
or not there exist any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board of Directors for adoption) or by the owner or owners, at the
time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such meeting.
Business transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of Incorporation
or these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after three years from its date, unless such proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast at such meeting
shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the
votes entitled to be cast by the holders of all the then issued and outstanding shares of common
stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or without the State of Delaware. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any three (3) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic
facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time,
members of the Board of Directors of the Corporation, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or similar communications equipment through which all
persons participating in the meeting can hear each other, and participation in a meeting pursuant
to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a majority
of the entire Board of Directors, designate one (1) or more committees, each committee to consist
of two (2) or more of the directors of the Corporation. The Board of Directors may designate
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of any such committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the place of any absent
or disqualified member. Any committee, to the extent allowed by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when required. The Board shall have the
power at any time to change the members of any such committee, to fill vacancies and to discharge
any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with attached at Board stockholder
meetings, and shall receive such other compensation as determined by the stockholders from time to
time by majority vote.
Section 10. Interested Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors,
if there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Written notice may also be
given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words Corporate Seal, Delaware.
The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1
and 2 of this Article VIII. The basis of such indemnification by a court shall be a determination
by such court that indemnification of the director or officer is proper in the circumstances
because he has met the applicable standards of conduct set forth in Section 1 or Section 2 of this
Article VIII, as the case may be. Neither a contrary determination in the specific case under
Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock
holders or disinterested directors or pursuant to the direction (howsoever embodied) of any court
of competent jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, these Bylaws may be altered, amended or repealed, in whole or in part, or new
Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that
notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice
of such meeting of stockholders or Board of Directors, as the case may be. Except as otherwise
provided in the Certificate of Incorporation, all such amendments must be approved by either the
holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority
of the entire Board of Directors then in office.
exv3w465
FILED
In the Office of the
Secretary of State of Texas
OCT 03 2005
Corporations Section
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
EL CENTRO LANDFILL, L.P.
Pursuant to the provisions of Section 2.02 of the Texas Revised Limited Partnership Act,
the undersigned limited partnership desires to amend its certificate of limited partnership and
for that purpose submits the following certificate of amendment.
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The name of the limited partnership is El Centro Landfill, L.P. |
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The certificate of limited partnership is amended as follows: |
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Section 4 of the Certificate of Limited Partnership is amended to read: |
4. General Partner Information: The name, mailing address, and street address of the
business of the general partner is: Allied Waste Landfill Holdings, Inc., 15880 N.
Greenway-Hayden Loop, #100, Scottsdale, Arizona 85260.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited
Partnership on this 3rd day of October, 2005.
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EL CENTRO LANDFILL, L.P. |
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By:
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, its general partner |
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/s/ Jo Lynn White
Jo Lynn White, Secretary
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exv3w466
Exhibit 3.466
AMENDED AND RESTATED
PARTNERSHIP AGREEMENT OF
EL CENTRO LANDFILL, L.P.
This Amended and Restated Partnership Agreement is entered into as of August 31, 2009, by and
between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and
ALLIED WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the terms
and conditions set forth in this Agreement. This Agreement supersedes, replaces in its entirety
and more fully set forth the partnership agreement in effect prior to the effectiveness hereof
between the Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 below.
1.2 Formation. The Partnership was formed as a Texas Limited Partnership upon the
filing of its certificate of limited partnership with the Texas Secretary of State on November
21,
2002. The Partners hereby agree to continue the Partnership as a limited partnership pursuant
to
the provisions of the Act and upon the terms and conditions set forth in this Agreement.
1.3 Name. The name of the Partnership is El Centro Landfill, L.P. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of non-hazardous solid waste management, and to engage in any other activity
permitted under Texas law and the laws of any jurisdiction in which the Partnership may do
business.
1.5 Office. The registered office of the Partnership within the State of Texas shall
be
C T Corporation System, 350 North St. Paul Street, Dallas, County of Dallas. The registered
office may be changed to any other place within the State of Texas by the General Partner,
upon
written notice to the Limited Partners. The Partnership may maintain a registered office in
any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Texas are C T Corporation System, 350
North St. Paul Street, Dallas, Texas 75201. The agent for service of legal process may be
changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership commenced on November 21, 2002, the date
on which the Partnerships certificate of limited partnership was filed with the Texas
Secretary of
State, and shall continue in perpetuity until the Partnership is dissolved as set forth in
this
Agreement or pursuant to the Act.
1.8 Filings. The Partners shall take any and all other actions, and shall execute and
file such amendments to this Agreement or to the Partnerships certificate of limited
partnership
as are reasonably necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of the State of Texas. The Partners hereby authorize the General
Partner to elect to become a registered limited liability partnership if, on the General Partners
direction, the General Partner determines it is appropriate to do so.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The General Partner acquired its interest in the
Partnership by acquiring all of the Partnership interest then held by American Ecology
Services
Corporation, a Delaware corporation, and the Limited Partner acquired its interest in the
Partnership by acquiring all of the Partnership interest then held by Texas Ecologists, Inc.,
a
Texas corporation. In conjunction with such acquisitions, each Partner received (a) a credit
to
its Capital Account equal to the value of its acquisition, and (b) a Percentage Interest in
the
Partnership, as set forth on Exhibit A. No Partner shall be obligated to make
additional Capital
Contributions to the Partnership, unless such Partner agrees in writing to do so.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no
Partner shall withdraw any Capital Contributions or any money or other property from the
Partnership without the written consent of the other Partners. Under circumstances requiring a
return of any Capital Contributions, no Partner shall have the right to receive property other
than
cash, unless otherwise specifically agreed in writing by the Partners at the time of such
distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. During any period in which
the
Partnership is also a registered limited liability partnership, no Partner shall be liable for
the
debts, liabilities, contracts or any other obligations of the Partnership, except as
specifically
provided in the Act. Except as agreed upon by the Partners, and except as otherwise provided
by
the Act or by any other applicable state law, no Partner shall be required to make any other
Capital Contributions or to loan any funds to the Partnership. No Partner shall have any
personal
liability for the repayment of its Capital Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended
or will be deemed to benefit any creditor of the Partnership, and no creditor of the
Partnership
will be entitled to require any Partner to solicit or demand Capital Contributions from any
other
Partner.
(d) Withdrawal. Except as provided in Section 8 below, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
2
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 below, Net
Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such
times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in
proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon
the advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest
and reinvest Partnership funds for the purposes set forth in Section 1.4 above, in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge,
encumber and otherwise deal with Partnership property;
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(c) execute any and all agreements, contracts, documents, certificates and
instruments necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any
Partnership property;
(e) borrow money and issue evidences of indebtedness necessary, convenient
or incidental to the accomplishment of the purposes of the Partnership, and secure the same by
mortgage, pledge or other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend
any liabilities affecting the Partnerships property and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a
condition precedent to acts by the General Partner or that are in any other manner germane to
the
affairs of the Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or
document of the Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever
involving the Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons
as officers of the Partnership. The officers shall have the authority to act for and bind
the
Partnership to the extent of the authority granted to them by the General Partner on behalf of
the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of
the
Partnership will be entitled to such compensation for their services as the General Partner
may
reasonably determine from time to time.
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5.4 Communications. The General Partner shall promptly advise and inform each of
the Partners of any transaction, notice, event or proposal directly relating to the management
and
operation of the Partnership or to its assets that does or could materially affect, either
adversely
or favorably, the Partnership, its business or its assets.
5.5 Indemnification. To the fullest extent permitted by law, the Partnership, its
receiver or its trustee shall defend, indemnify and save harmless the Partners and their
officers
and directors (the Indemnified Parties) from and against all losses, claims, costs,
liabilities and
damages incurred by them by reason of any act performed or omitted to be performed by them in
connection with the business of the Partnership, including attorneys fees incurred by them in
connection with the defense of any action based on any such act or omission; provided,
however,
no Indemnified Party shall be indemnified from any liability for fraud, bad faith, willful
misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the other Partners. A
transferee of
a Partners interest in the Partnership will be admitted as a Substituted Limited Partner only
pursuant to Section 8.3 below. Any purported Transfer that does not comply with the
provisions
of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of this Section 8 (or pursuant
to a Transfer
that the Partnership is required to recognize notwithstanding any contrary provisions of this
Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted
Limited Partner pursuant to Section 8.3 below, such Person:
(a) shall be an assignee of a Partners interest, as provided in the Act;
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(b) shall have no right to participate in the business and affairs of the
Partnership or to exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with
respect to the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to
receive distributions and allocations with respect to its Partnership interest, shall be
treated as the
transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner
upon the unanimous written consent of the other Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 above, the remaining General
Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 above, and as a consequence thereof the Partnership
has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the
Partnership
and its business without dissolution. The election of a new General Partner shall require
the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the
collection of the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the
Partnership and its business without dissolution pursuant to Section 9.2 above in the
event any
Person ceases to be a General Partner pursuant to Section 9.1 above; or
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(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 above, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 above and no Person named as a successor General
Partner in Section 9.3 is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or the
Limited Partners, by majority vote, if there is no General Partner) shall take full account of
the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the
period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to
the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and
liabilities (other than those to the Partners), including the establishment of any necessary
reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1 above.
Notwithstanding anything in Section 3 to the contrary, any Profits, Losses and items
thereof of the Partnership for the taxable year in which the liquidation of the Partnership occurs
shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners as
closely as possible to distributions of such liquidation proceeds pursuant to the priorities set
forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the
Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Texas
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted
to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or
by
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership,
to the Partnership at the address set forth in Section 1.6 above, or to such other
address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on
Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1.
Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
7
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify
in any manner any provision of Section 8 above.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the
scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality
or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may
be reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person
or
Persons may require.
11.8 Texas Law. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of
the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner
may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of
the General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Texas Revised Limited Partnership Act, as amended from time to time
(or any corresponding provisions of succeeding law).
8
12.2 Agreement means this Amended and Restated Partnership Agreement, as
amended from time to time. Words such as herein, hereinafter, hereof, hereto and
hereunder refer to this Agreement as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in
accordance with Section 3.4.
12.4 Capital Contribution means, with respect to any Partner, the amount of money
and the net fair market value of property (other than money) contributed to the Partnership by
such Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time
(or any corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
General Partner, or who has become a General Partner pursuant to the terms of this Agreement,
and (b) has not ceased to be a General Partner pursuant to the terms of this Agreement.
General
Partners means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the
terms
of this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all
sources, less the portion thereof used to pay or establish reserves for Partnership expenses,
debt
payments (including payments on loans from Partners), capital improvements, replacements and
contingencies, all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no
distinction is required by the context in which the term is used herein. Partner means any
one
of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided
for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, limited partnership, corporation,
limited liability company, trust, or other legal entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount
equal to the Partnerships taxable income or loss for such year or period, determined in
9
accordance with Code Section 703(a), reduced by any items of income or gain subject to special
allocation pursuant to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as
such regulations may be amended from time to time (including corresponding provisions of
succeeding regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc.,
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Allied Waste Systems Holdings, Inc., |
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a Delaware corporation
|
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a Delaware corporation |
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By:
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/s/ Donald W. Slager
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By:
|
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/s/ Donald W. Slager
|
|
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Name:
|
|
Donald W. Slager
|
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|
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Name:
|
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Donald W. Slager |
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Its:
|
|
President
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|
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Its:
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President |
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10
EXHIBIT A
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Initial Capital |
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Contribution by |
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Percentage |
Names and Addresses of Partners |
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Acquisition |
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Interest |
General Partner: |
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$10.00 |
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1% |
Allied Waste Landfill Holdings, Inc. |
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18500 North Allied Way |
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Phoenix, AZ 85054 |
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Limited Partner: |
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$990.00 |
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99% |
Allied Waste Systems Holdings, Inc. |
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18500 North Allied Way |
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Phoenix, AZ 85054 |
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11
exv3w467
Exhibit 3.467
ENDORSED
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE
OF THE STATE OF CALIFORNIA
APR 11 2000
BILL JONES, SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
ELDER CREEK TRANSFER & RECOVERY, INC.
* * * * *
FIRST: That the name of the corporation is Elder Creek Transfer & Recovery, Inc.
SECOND: The purpose of this corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession permitted to be
incorporated by the California Corporation Code.
THIRD: The name of this corporations initial agent for service of process in
the State of California is :
C T CORPORATION SYSTEM
FOURTH: The total number of shares which the corporation is authorized to issue is
one thousand (1,000) of the par value of one cent ($0.01) each.
FIFTH: The personal liability of a director for monetary damages in an action
brought by or in the right of the corporation for breach shall be eliminated to the fullest extent
permissable under California law.
SIXTH: The corporation is authorized to indemnify the directors and officers of the
corporation to the fullest extent permissable under California law. The corporation is authorized
to provide indemnification of agents (as defined in Section 317) through bylaw provisions,
agreements with agents, vote of shareholders or disinterested directors or otherwise, in excess of
that expressly permitted by Section 317 for those agents of the corporation for breach of duty to
the corporation and its stockholders, subject to limitations set forth in Section 204.
IN WITNESS WHEREOF, the undersigned have executed these Articles this
7th day of April, 2000.
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/s/ Donald W. Slager
Donald W. Slager, Incorporator
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1
* * * * *
STATEMENT
OF
SOLE INCORPORATOR
OF
ELDER CREEK TRANSFER & RECOVERY, INC.
* * * * *
The articles of incorporation of this corporation having been filed in the office of the
Secretary of State of California, the undersigned, being the sole incorporator named in said
articles, does hereby state that the following actions were taken on this day for the purpose of
organizing this corporation:
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1. |
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The following persons were elected as directors to hold office until the
first annual meeting of stockholders or until their respective successors
are duly elected and qualified: |
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James Eng
Donald W. Slager
G. Thomas Rochford, Jr. |
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2. |
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The board of directors was authorized, in its discretion, to issue the shares of the capital stock of this corporation to the full amount or
number of shares authorized by the articles of incorporation, in such
amounts and for such consideration as from time to time shall be
determined by the board of directors and as may be permitted by law. |
Dated: April 11, 2000.
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/s/ Donald W. Slager
Donald W. Slager Sole Incorporator
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exv3w468
Exhibit 3.468
BYLAWS
OF
ELDER CREEK TRANSFER & RECOVERY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen
9
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall
10
be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant to this
Article VIII shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any Bylaw, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied)
of any court of competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any person who is not specified in Section 1 or
Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w469
Exhibit 3.469
CERTIFICATE OF LIMITED PARTNERSHIP
OF
ELLIS COUNTY LANDFILL TX, l p
The undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The name of the limited partnership is Ellis County Landfill tx, l p
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Ellis County Landfill TX, L P as of June 6, 1997.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation,
General Partner
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By: |
/s/ Steven M. Helm
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Its V.P. Legal |
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Steven M. Helm |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 04:30 PM 06/06/1997 |
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971187205 2760050 |
ELLIS COUNTY LANDFILL TX, L L C
15880 N. Greenway-Hayden Loop, Suite #100
Scottsdale, Arizona 85260
Delaware Secretary of State
P.O. Box 898
Dover, Delaware 19903
To Whom It May Concern:
The undersigned hereby authorizes use of the name Ellis County Landfill TX, LP
with regard to the formation of Ellis County Landfill TX, LP, a Delaware limited partnership.
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Very truly yours, |
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ELLIS COUNTY LANDFILL TX, LLC |
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By: Allied Waste North America, Inc., |
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a Delaware corporation, Member |
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Vice President-Legal |
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 02:38 PM 11/22/2006 |
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FILED 04:28 PM 11/22/2006 |
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SRV 061074983 2760050 FILE |
STATE OF DELAWARE
AMENDMENT TO THE CERTIFICATE OF
LIMITED PARTNERSHIP
The undersigned, desiring to amend the Certificate of Limited Partnership pursuant to the
provisions of Section 17-202 of the Revised Uniform Limited Partnership Act of the State of
Delaware, does herby certify as follows:
FIRST: The name of the Limited Partnership is Ellis County Landfill TX, LP.
SECOND: Article III of the Certificate of Limited Partnership shall be amended as follows:
The name and mailing address of the general partner(s) is as follows:
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Name |
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Mailing Address |
Allied Waste Landfill Holdings, Inc.
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18500 North Allied Way |
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Phoenix, Arizona 85054 |
THIRD: Article IV of the Certificate of Limited Partnership shall be added as follows:
The name and mailing address of the Limited Partnership is as follows:
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Name |
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Mailing Address |
Ellis County Landfill TX, LP
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18500 North Allied
Way Phoenix, Arizona 85054 |
IN WITNESS WHEREOF, the undersigned executed this Amendment to the certificate of Limited Partnership on this 17th day of November, A.D. 2006.
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/s/ : Ryan N. Kenigsberg |
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Ryan N. Kenigsberg, Vice President |
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By: Allied Waste Landfill Holdings, Inc.,
its General Partner |
exv3w470
Exhibit 3.470
AGREEMENT OF LIMITED PARTNERSHIP OF
ELLIS COUNTY LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of June 6, 1997, by and between
Allied Waste Landfill Holdings, Inc., a Delaware corporation, as the General Partner, and Ellis
County Landfill TX, LLC, as the Limited Partner, on the following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Ellis County Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon the
unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to
2
the Partnership as a result of such withdrawal shall be offset against amounts that would
otherwise be distributed to such Partner.
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests at
such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c) or Treasury Regulations promulgated thereunder, all Profits, Losses and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole
and exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers which may be possessed by general partners under the Act. If two or more Persons are
serving as General Partners, decisions regarding the management of the Partnership and its
business and affairs shall be made by the consent of a majority in number of the General Partners
then serving. The rights and powers which the General Partner may exercise include, but are not
limited to, the following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4.
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
3
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may rely
upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts which constitute a condition precedent
to acts by the General Partner or which are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The
4
officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets which does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right, during
ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature which do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer which does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
5
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. In the event any
Person ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General
Partners, if any, shall have the right and the power to continue the Partnership and its business
without dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any
of the following events:
6
(a) The sale of all or substantially all of the Partnerships assets and the collection
of the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnership property, and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered
7
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership, to the Partnership at the address set forth in Section 1.6 hereof, or to such other
address as the Partnership may from time to time specify by notice to the Partners in accordance
with this Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to
time specify by notice to the Partnership and the other Partners in accordance with this Section
11.1 Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Partners
and their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Partners interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 8 hereof.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
8
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions which the General Partner may take and all determinations which the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not ceased
to be a General Partner pursuant to the terms of this Agreement. General Partners means all such
Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a Limited
Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of this
Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
9
12.9 Partners means the General Partners and the Limited Partners, where no distinction
is required by the context in which the term is used herein. Partner means any one of the
Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on Exhibit
A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Landfill Holdings, Inc., a Delaware corporation
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By: |
/s/ Steven M. Heim
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Its: |
V.P. Legal |
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Ellis County Landfill TX, LLC,
a Delaware limited liability company,
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By: |
/s/ Steven M. Heim
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Its: |
Secretary |
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10
EXHIBIT A
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Initial Capital |
|
Percentage |
Names and Addresses of Partners: |
|
Contribution |
|
Interest |
General Partner: |
|
$ |
|
|
|
|
1 |
% |
Allied Waste Landfill Holdings, Inc.
|
|
|
|
|
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15880 North Greenway Hayden Loop |
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Suite 100 |
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|
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Scottsdale, Arizona 85260 |
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Limited Partner:
|
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$ |
|
|
|
|
99 |
% |
Ellis County Landfill TX, LLC
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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11
CONSENT IN LIEU OF MEETING OF THE GENERAL PARTNER OF
ELLIS COUNTY LANDFILL TX, LP
The undersigned, being the general partner of Ellis County Landfill TX, LP, a Delaware limited
partnership (the Partnership), hereby adopts by this unanimous written consent the following
resolutions with the same force and effect as if they were unanimously adopted at a duly convened
meeting of the Partnerships general partner:
I. RECITALS
WHEREAS, the Partnership desires to acquire certain operations of USA Waste of Texas, Inc.
(USA), pursuant to that certain Purchase and Sale of Assets Agreement, dated March 7, 1997, as
amended, among Ellis County Landfill TX, LP, Laidlaw Waste Systems, Inc., USA Waste of Texas, Inc.
and USA Waste Services, Inc. (the Agreement);
WHEREAS, the Partnership, desires to approve, authorize and direct certain actions to be
taken relating to the Agreement and the other transactions contemplated thereby.
II. APPROVAL OF AGREEMENTS
NOW, THEREFORE, BE IT RESOLVED, that the Partnership hereby adopts and approves the purchase
and sale transactions contemplated by the Agreement and the terms and provisions of the Agreement,
believing that the terms thereof are fair to, and in the best interest of, the Partnership; and
FURTHER RESOLVED, that the President, Secretary and any Vice President of the general partner
of the Partnership, and each of them acting alone (each an Authorized Officer), hereby are
authorized and directed to execute and deliver in the name and on behalf of the Partnership, and
to cause the Partnership to perform its obligations under, the Agreement, and such other
agreements and documents as are contemplated thereby, with such changes therein and additions
thereto as any Authorized Officer may approve or deem to be necessary, appropriate or advisable,
the execution thereof by such officer to be conclusive evidence of the approval by him of such
changes and additions, and to perform all other acts that may be necessary in connection
therewith.
III. MISCELLANEOUS MATTERS
NOW, THEREFORE, BE IT RESOLVED, that all actions heretofore taken on behalf of the Partnership
by any officer of the general partner of the Partnership in connection with any of the foregoing
matters are ratified and confirmed in all particulars as the acts of the Partnership; and
FURTHER RESOLVED, that the Partnership unanimously adopts and approves any and all additional
resolutions necessary or desirable to implement and effect the transactions
- 2 -
contemplated by the Agreement or by the foregoing resolutions, such resolutions to be in a form
and content prepared and filed by any Authorized Officer with these resolutions; and
FURTHER RESOLVED, that the Authorized Officers, and each of them acting alone, hereby are
authorized and directed, in the name and on behalf of the Partnership, to take all action,
including, without limitation, seeking all requisite consents and approvals, if any, from third
parties or under federal, state and foreign law as any of such Authorized Officers considers
necessary or advisable to effectuate each of the foregoing resolutions and to carry out the
purposes thereof or otherwise to effectuate any transactions contemplated by the Agreement, the
taking of any such action and the execution of any such agreement, instrument or document by such
officer conclusively to evidence the due authorization thereof by the Partnership; and
FURTHER RESOLVED, that the Authorized Officers, and each of them acting alone, hereby are
authorized and directed, in the name and on behalf of the Partnership, to take or cause to be taken
any and all further actions and to execute and deliver, or cause to be executed and delivered, all
such further agreements, and such further documents, certificates, applications, notices, and
undertakings, and to incur all such fees and expenses, as in their judgment shall be necessary,
appropriate or advisable to carry into effect the purpose and intent of the foregoing resolutions.
Dated this 17th day of June, 1997.
GENERAL PARTNER:
Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
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By:
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/s/ Larry D. Henk
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Its:
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President
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- 3 -
FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF
ELLIS COUNTY LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Ellis County Landfill TX, LP (the
First Amendment) is entered into effective as of December 31, 1998, by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH) and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH)(collectively, the
Partners).
RECITALS
A. Ellis County Landfill TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State on June 6, 1997, and the related Limited Partnership Agreement of Ellis County
Landfill TX, LP, dated as of June 6, 1997 (the Agreement) between AWLH and Ellis County Landfill
TX, LLC, a Delaware limited liability company (ELLIS). Unless specifically defined herein,
capitalized terms appearing in this First Amendment shall have the meanings given those terms in
the Agreement.
B. Pursuant to an Agreement and Plan of Merger between AWSH and ELLIS, among others, dated
December 29, 1998, ELLIS merged with and into AWSH, resulting in a transfer by operation of law of
ELLISs interest in the Partnership to AWSH.
C. The Partners desire to acknowledge the merger and the admission of AWSH as a substituted
limited partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby consents
to (a) the transfer described in Recital B above of ELLISs interest in the Partnership to AWSH and
(b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of ELLISs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all terms
and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
General Partner
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By: |
/s/ D. W. Slager,
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D. W. Slager, President |
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Allied Waste Systems Holdings, Inc.,
a Delaware corporation
Limited Partner
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By: |
/s/ Michael E. Hannon
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Michael E. Hannon |
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Vice President |
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-2-
EXHIBIT A
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|
|
|
|
|
|
Percentage |
Names and Addresses of Partners |
|
Interest |
Allied Waste Systems Holdings, Inc.
|
|
|
99 |
% |
15880 N. Greenway Hayden Loop
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|
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|
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Suite 100 |
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|
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Scottsdale, Arizona 85260 |
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|
|
|
|
|
|
|
|
Allied Waste Landfill Holdings, Inc.
|
|
|
1 |
% |
15880 N. Greenway Hayden Loop
|
|
|
|
|
Suite 100 |
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|
|
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Scottsdale, Arizona 85260 |
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|
|
|
|
|
|
|
|
TOTAL |
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|
100 |
% |
-3-
exv3w471
Exhibit 3.471
CERTIFICATE OF FORMATION
ELLIS SCOTT LANDFILL MO, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Ellis Scott Landfill MO, LLC.
2. Registered Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of
New Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has caused this
Certificate of Formation to be duly executed as of the 4rth day of June, 1997.
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Allied Waste North America, Inc., |
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a Delaware corporation, |
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Member |
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By:
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/s/ Steven M. Helm |
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Its:
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Vice President - Legal |
exv3w472
Exhibit 3.472
OPERATING AGREEMENT OF
ELLIS SCOTT LANDFILL MO, LLC
This Operating Agreement is entered into as of June 5, 1997 by and between Allied Waste North
America, Inc., a Delaware corporation (N.A.) and Allied Waste Landfill Holdings, Inc., a
Delaware corporation (Holdings), each individually referred to herein as a Member, and
collectively as Members.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 9.12 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is ELLIS SCOTT LANDFILL MO, LLC. The name of the
Company may be changed upon the consent of the Members.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Members that the Company shall always be operated
in a manner consistent with its treatment as a partnership for federal and state income tax
purposes. It also is the intent of the Members that the Company not be operated or treated as a
partnership for purposes of Section 303 of the federal Bankruptcy Code. No Member shall take any
action inconsistent with the express intent of the parties hereto.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Members. The Company may maintain a registered office in any state within which it does business at
any location approved by the Members.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Members.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Members shall cause a Certificate of Formation to
be filed in the State of Delaware. The Members shall file any amendments to the Certificate of
Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Members
in accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Members in accordance with this Agreement, any Member or a designee of
a Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Members. The name, address and Percentage Interest of each Member are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Members. The Members shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. In conjunction with such contributions, each
Member shall receive a credit to its Capital Account equal to its Capital Contribution and a
Percentage Interest in the Company as set forth on Exhibit A.
2.3 Additional Capital Contributions. No Member shall be obligated to make additional
Capital Contributions to the Company, except upon the unanimous written consent of the Members.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Member shall
withdraw any Capital Contributions or any money or other property from the Company without the
written consent of the other Member. Under circumstances requiring a return of any Capital
Contributions, no Member shall have the right to receive property other than cash, unless otherwise
specifically agreed in writing by the Members at the time of such distribution.
(b) Liability of Members. No Member shall be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Members, and except
as otherwise provided by the Act or by any other applicable state law, the Members shall be liable
only to make their Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not
be required to make any other Capital Contributions or loans to the Company. No Member shall have
any personal liability for the repayment of the Capital Contributions or loans of any other Member.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require any Member to solicit or demand Capital Contributions from any other Member.
2
(d) Withdrawal. Except as provided in Section 7 hereof, no Member may voluntarily or
involuntarily withdraw from the Company or terminate its interest therein without the prior
written consent of the other Member. Any Member who withdraws from the Company in breach of this
Section 2.4(d):
(i) shall be treated as an assignee of a Members interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Company, on the same
basis as if the Member had not withdrawn, provided that any damages to the Company as a result of
such withdrawal shall be offset against amounts that would otherwise be distributed to such
Member. The right to share in distributions granted under this Section 2.4(d) shall be in lieu of
any right the withdrawn member may have under Section 18-604 of the Act to receive a distribution
or payment of the fair value of its interest in the Company.
2.5 Member Loans. Upon the approval of the Members, any Member may make loans
(Member Loans) to the Company, which shall bear interest and be repaid on such reasonable terms
and conditions as may be approved by the Members. No Member shall be required to make a Member
Loan unless such Member has agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Members in proportion to their Percentage Interests, at such times as may be determined by
the Members.
SECTION 4. ALLOCATIONS
4.1 Capital Accounts. A capital account shall be maintained for each Member in
accordance with the Regulations, under uniform policies established by the Members.
4.2 Profits and Losses. Unless otherwise required by Code Sections 704(b), 704(c) or
Treasury Regulations promulgated thereunder, all Profits, Losses and items thereof for each fiscal
year of the Partnership shall be allocated to the Partners in proportion to their Percentage
Interests.
3
SECTION 5. MANAGEMENT
5.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the consent
or approval of the Members under this Agreement, shall be made or taken upon concurrence of a
Majority in Interest of the Members. The Members shall devote such time and effort as is necessary
for the management of the Company and the conduct of its business, but shall not be required to
devote their full time efforts to the Company. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of any Member as binding on the Company, without any
duty of further inquiry regarding any approval of the Members required under this Agreement.
5.2 Delegation of Authority to Officers. The Members may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions duly adopted by the Members on behalf
of the Company. The officers of the Company may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the Members deem appropriate. The officers of the Company
will be entitled to such compensation for their services as the Members may reasonably determine
from time to time.
5.3 Communications. The Members shall promptly advise and inform each other of any
transaction, notice, event or proposal directly relating to the management and operation of the
Company or to its assets which does or could materially affect, either adversely or favorably, the
Company, its business or its assets.
5.4 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Members and their officers and directors (the Indemnified Parties) from and
against all losses, claims, costs, liabilities and damages incurred by them by reason of any act
performed or omitted to be performed by them in connection with the business of the Company,
including attorneys fees incurred by them in connection with the defense of any action based on
any such act or omission; provided, however, no Indemnified Party shall be indemnified from any
liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. Each Member shall have the right, during
ordinary business hours, to inspect and copy such Company documents.
6.2 Tax Matters. N.A. is hereby appointed on behalf of the Company as the tax matters
partner under the Code.
SECTION 7. TRANSFER OF COMPANY INTERESTS; NEW MEMBERS
7.1 General. No Member shall sell, assign, pledge, hypothecate, encumber or
4
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Company without the consent of the other Member. A transferee of a Members
interest in the Company will be admitted as a Substituted Member only pursuant to Section 7.3
hereof. Any purported Transfer which does not comply with the provisions of this Section 7 shall
be void and shall not cause or constitute a dissolution of the Company.
7.2 Assignee of Members Interest. If, pursuant to a Transfer of an interest in the
Company by operation of law and without violation of Section 7.1 hereof (or pursuant to a Transfer
that the Company is required to recognize notwithstanding any contrary provisions of this
Agreement), a Person acquires an interest in the Company, but is not admitted as a Substituted
Member pursuant to Section 7.3 hereof, such Person:
(a) shall be treated as an assignee of a Members interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Company with respect to the
transferred interest, on the same basis as the transferring Member.
7.3 Substituted Members. No Person taking or acquiring, by whatever means, the
interest of any Member in the Company shall be admitted as a substituted Member in the Company (a
Substituted Member) without the written consent of all Members, which consent may be withheld or
granted in the sole and absolute discretion of each Member.
SECTION 8. DISSOLUTION AND TERMINATION
8.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Members to dissolve the Company;
(c) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any member (a
Dissolution Event) if within 90 days after the occurrence of any such Dissolution Event, a
Majority in Interest of the remaining Members affirmatively elects not to continue the Company; or
(d) The entry of a decree of dissolution under Section 18-802 of the Act.
5
8.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 8.1
hereof, the remaining Member(s) may participate in the winding up of the Company as provided in
Section 18-803 of the Act. The Company shall cease to carry on its business, except insofar as may
be necessary for the winding up of its business, but the Companys separate existence shall
continue until a certificate of cancellation has been filed with the Delaware Secretary of State or
until a decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
remaining Member(s), or court-appointed trustee, if there are no remaining Members, shall take full
account of the Companys liabilities and assets, and such assets shall be liquidated as promptly as
is consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to Members who are creditors, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Members in satisfaction of any Member Loans which have not been satisfied
pursuant to Section 8.2(b)(i); and
(iii) To the Members in accordance with Section 3.
Notwithstanding anything in Section 4 hereof to the contrary, any Profits, Losses and items
thereof of the Company for the taxable year in which the liquidation of the Company occurs shall
be allocated among the Members so as to adjust the Capital Accounts of the Members as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in
this Section 8.
8.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Members, a certificate of
cancellation shall be executed and filed by the Members with the Delaware Secretary of State.
SECTION 9. MISCELLANEOUS
9.1 Notices. Any notice, payment, demand or communication required or permitted
6
to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the Company,
to the Company at the address set forth in Section 1.6 hereof, or to such other address as the
Company may from time to time specify by notice to the Members in accordance with this Section
9.1, or, if to a Member, to such Member at the address for such Member set forth on Exhibit A to
this Agreement, or to such other address as the Member may from time to time specify by notice to
the Company and the other Members in accordance with this Section 9.1. Any such notice shall be
effective upon actual receipt thereof.
9.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Members
and their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 9.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Members interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 7 hereof.
9.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Member.
9.4 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
9.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
9.6 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
9.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
9.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Members.
9.9 Waiver of Action for Partition. Each of the Members waives any right that it may
have to maintain any action for partition with respect to any of the Companys property.
7
9.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
9.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement, all
actions which any Member may take and all determinations which any Member may make pursuant to this
Agreement may be taken and made at the sole and absolute discretion of such Member.
9.12 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann. Tit.
6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means the capital account maintained for each Member in accordance
with Section 4.1 hereof.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Majority in Interest of the Members means Members owning a simple majority of the
Percentage Interests in the Company held by all Members.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Members refers collectively to all
8
Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
reasonably determined by the Members.
Percentage Interest means a Members interest, expressed as a percentage, in
Profits, Losses, and distributions of the Company as provided for in this Agreement. The Members
Percentage Interests are set forth opposite their names on Exhibit A hereto.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Members to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
Substituted Member has the meaning given that term in Section 7.3 hereof.
Transfer has the meaning given that term in Section 7.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Its: |
V. P. Legal |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Its: |
Secretary |
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9
EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Members |
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Contribution |
|
Interest |
Allied Waste North America, Inc. |
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$ |
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|
99 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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|
Allied Waste Landfill Holdings, Inc. |
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$ |
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1 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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10
exv3w473
Exhibit 3.473
FILED
1991 JAN - 8 AM 9:13
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES OF INCORPORATION
OF
ENVIROCYCLE, INC.
ARTICLE I NAME
The name of this corporation is ENVIROCYCLE, INC.
ARTICLE II PURPOSE
The corporation shall be authorized to transact all legal business of any nature.
ARTICLE III CAPITAL STOCK
The capital stock authorized, the par value thereof, and the class of such stock shall
be as follows:
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Number of Shares |
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Par Value Per |
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Class of |
Authorized |
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Share |
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Stock |
1,000
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|
1.00
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Common |
ARTICLE IV PREEMPTIVE RIGHTS
Every shareholder, upon the sale for cash of any new stock of this corporation of the
same kind, class or series as that which he already holds, shall have the right to purchase his
prorata share thereof (as nearly as may be done without issuance of fractional shares) at the price
at which it is offered to others.
ARTICLE V INITIAL REGISTERED
OFFICE AND AGENT
The street address of the initial principal and mailing office of this corporation is:
200 E. Las Olas Boulevard
Suite 1420
Fort Lauderdale, Florida 33301
and the name and address of the initial registered agent of this corporation is:
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Name |
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Address |
Peter Wright
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200 E. Las Olas Boulevard |
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Suite 1420 |
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Fort Lauderdale, Florida 33301 |
ARTICLE VI COMMENCEMENT
This corporation shall commence on the date on which these Articles are filed
with the Secretary of State.
ARTICLE VII INITIAL
BOARD OF DIRECTORS
This corporation shall have one director initially. The number of directors may be
either increased or diminished from time to time by the By-Laws, but shall never be less than one.
The name and address of the initial director of this corporation is:
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Name |
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Address |
Peter Wright
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200 E. Las Olas Boulevard |
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Suite 1420 |
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Fort Lauderdale, Florida 33301 |
ARTICLE VIII INCORPORATOR
The name and address of the person signing these Articles of Incorporation is:
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Name |
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Address |
Peter Wright
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200 E. Las Olas Boulevard |
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Suite 1420 |
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Fort Lauderdale, Florida 33301 |
ARTICLE IX BY-LAWS
The power to alter, amend or repeal By-Laws shall be vested in the Board of
Directors and the shareholders.
-2-
ARTICLE X INDEMNIFICATION
The corporation shall indemnify any officer or director, or any former officer or
director, to the fullest extent permitted by law.
ARTICLE XI AMENDMENT
This corporation reserves the right to amend or repeal any provisions contained in these
Articles of Incorporation, or any amendment thereto, and any right conferred upon the shareholders
is subject to this reservation.
IN WITNESS WHEREOF, the undersigned subscriber has executed these Articles of Incorporation
this 19 day of December, 1990.
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/s/ Peter Wright
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Subscriber, Director, and Registered Agent |
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STATE OF FLORIDA |
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) |
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) |
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SS. |
COUNTY OF [ILLEGIBLE] |
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) |
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|
BEFORE ME, the undersigned authority, authorized to take acknowledgments in the State and
County set forth above, personally appeared Peter Wright, known to me and known by me to be the
Person who executed the foregoing Articles of Incorporation, and he acknowledged before me that he
executed those Articles of Incorporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, in the State and
County aforesaid, this 19 day of December, 1990.
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/s/ [ILLEGIBLE]
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Notary Public, State of Florida |
|
NOTARY PUBLIC, STATE OF FLORIDA
MY COMMISSION EXPIRES: OCT. 6, 1993
BONDED THRU NOTARY PUBLIC UNDERWRITERS
-3-
exv3w474
Exhibit 3.474
AMENDED AND RESTATED BYLAWS
OF
ENVIROCYCLE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
5
or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific
case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w475
Exhibit 3.475
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FILED
OCT 3 1989
/s/ [ILLEGIBLE] |
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SECRETARY OF STATE |
RESTATED
Certificate of Incorporation
of
Environmental Development Corp.
ARTICLE I
The name of the Corporation is ENVIRONMENTAL DEVELOPMENT CORP.
ARTICLE II
The address of its registered office in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III
The nature of the business or purpose to be conducted or promoted is to engage in the general
business of handling, managing and disposing of sanitary and industrial waste, and to carry on such
activities of every Kind or nature as may be allied or incidental to such general business. |
ARTICLE IV
A. The total number of shares of all classes of stock which the Corporation
shall have authority to issue is seventeen thousand six hundred (17,600) shares,
consisting of: 1. two thousand (2,000) shares of Series A Convertible
Preferred Stock, par value one thousand three hundred thirty
-2-
dollars ($1,330) per share (Preferred Stock); 2. ten thousand (10,000) shares of Class A Common
Stock, without par value, two thousand (2000) of which are reserved against conversion of the
Preferred Stock and five thousand six hundred (5600) of which are reserved against conversion of
the Class B Common Stock (Class A Common Stock); and 3. five thousand six hundred (5600) shares
of Class B Common Stock, without par value, all of which are reserved against the exercize of
warrants to purchase same to be issued by the Corporation (Class B Common Stock) (collectively
the Class A and Class B Common Stock are hereinafter referred to as Common Stock).
B. The Board of Directors is hereby expressly granted authority, to the full extent permitted
herein and now or hereafter by the General Corporation Law of the State of Delaware, at any time
or from time to time, by resolution or resolutions, to issue the Preferred Stock, the Class A
Common Stock and the Class B Common Stock.
C. Holders of all shares of Preferred and Common Stock shall have such rights as are provided
herein and by law.
ARTICLE V
The designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitation or restrictions of each class of stock are as follows:
A. Preferred Stock
-3-
1. Preferred Dividends. (a) The Board of Directors shall declare, the Corporation
shall pay and the holders of the Preferred Stock shall be entitled to receive, out of funds legally
available, therefor under the Delaware General Corporation Law (the Corporation Law) (the
Legally Available Funds), cumulative dividends in cash on the Preferred Stock from
the date of issue at a rate per annum (the Dividend Rate) of eleven percent (11%) of the par
value thereof. All dividends described in this paragraph shall be due and payable on March 15,
June 15, September 15 and December 15 of each year (each of such dates being a dividend payment
date), in preference to and in priority over dividends on the Common Stock; provided, however,
that although dividends shall begin to accrue immediately upon issuance of shares of Preferred
Stock, the first payment of current and accrued dividends shall not be due until the first dividend
payment date occurring after two years from the issue date. Due but unpaid dividends shall
compound annually. Dividends shall be paid to the holders of record at the close of business on
the date specified by the Board of Directors of the Corporation at the time such dividend is
declared; provided, however, that such date shall not be more than sixty (60) days nor less than
ten (10) days prior to the respective dividend payment date. Each of such quarterly dividends
shall be fully cumulative and shall accrue (whether or not declared) from the first day of the
Quarterly Dividend Period, except that with respect to the
-4-
initial quarterly dividend, such dividend shall accrue from the issue data. The Quarterly Dividend
Periods shall commence on March 16, June 16, September 16, and December 16, in each year and shall
end on and include the day next preceding the first day of the next Quarterly Dividend Period.
Dividends shall accrue on a daily basis without regard to the occurrence of a dividend payment date
or the declaration of any dividend.
(b) Dividends payable on the Preferred Stock for any period of less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in the period for which payable.
(c) So long as any shares of Preferred Stock are outstanding, the Corporation shall not
declare, pay or set apart for payment any dividend on any class of Common Stock or make any payment
on account of, or set apart for payment money for a sinking or other similar fund for, the
purchase, or other retirement of, any class of Common Stock, or warrants, rights, calls or options
exercisable for or convertible into any class of Common Stock, or make any distribution in respect
thereof, either directly or indirectly, whether in cash, obligations or shares of the Corporation
or other property (other than distributions or dividends in Common Stock to the holders of Class A
or Class B Common Stock), and shall not permit any corporation or other entity directly or
indirectly controlled by the Corporation to purchase or redeem any class of Common
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Stock or any warrants, rights, calls or options exercisable for or convertible into any class of
Common Stock.
2. Preference upon Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation,
dissolution or other winding up of the affairs of the Corporation and before any distribution or
payment shall be made to the holders of Common Stock, the holders of the Preferred Stock shall be
entitled to be paid in cash the par value of, plus dividends accumulated on, all outstanding shares
of Preferred Stock as of the date of such liquidation or dissolution or such other winding up. If,
upon any such liquidation, dissolution or other winding up of the affairs of the Corporation, the
net assets of the Corporation distributable among the holders of all outstanding shares of the
Preferred Stock shall be insufficient to permit the payment in full to such holders of the
preferential amounts to which they are entitled, then the entire net assets of the Corporation
shall be distributed among the holders of the Preferred Stock ratably in proportion to the full
amounts to which they would otherwise be respectively entitled. The consolidation or merger of the
Corporation with or into another person in which this Corporation does not survive and in which the
holders of all the Common Stock and the Preferred Stock at the time of such consolidation or
merger, or parties under
their control or controlling them or under common control with
them, own less than fifty percent (50%) of the voting securities of the
surviving entity, or the sale, transfer or
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lease of all or substantially all of the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of
these Articles.
3. Preferred Voting Rights. (a) Except as otherwise required by law or by this
Certificate of Incorporation of the Corporation, the shares of Preferred Stock shall be voted
together with the shares of the Corporations Common Stock. Such holders shall be entitled to one
vote for each such share held by them.
(b) So long as any shares of Preferred Stock shall be unconverted and outstanding, the
Corporation shall not, without the approval by the vote or written consent of the holder or holders
of the shares of Preferred Stock: (i) authorize or issue additional shares of preferred or capital
stock or (ii) authorize, create or issue any shares of stock or reclassify any shares or issue any
common stock equivalent.
4. Preferred Conversion Rights. The Preferred Stock shall be convertible into Class A
Common Stock as follows:
(a) Optional Conversion. Subject to and upon compliance with the provisions of this
Article, the holder of any shares of Preferred Stock shall have the right at such holders option,
at any time or from time to time prior to December 31, 1995, to convert each share of Preferred
Stock into one share of Class A Common Stock or Common Stock in the event the class distinctions
between Class A end Class B Common Stock have been eliminated prior to such conversion.
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(b) Automatic Conversion. Each outstanding share of Preferred Stock shall automatically be
converted, without any further act of the Corporation or its stockholders, into one
share of Class A Common Stock (i) on December 31, 1995, or (ii) the closing of an underwritten
public offering pursuant to an effective registration statement under the Securities Act of 1933,
as amended (the Securities Act), covering the issuance, offering and sale of Common Stock for the
account of the Corporation in which the aggregate gross proceeds received by the Corporation equals
or exceeds twenty five million dollars ($25,000,000), whichever is earlier.
5. Special Rights of Preferred Stock. In addition to any other rights provided by law, so
long as any Preferred Stock is outstanding, the Corporation, without first obtaining the
affirmative vote or written consent of the holders of not less than a majority of the outstanding
shares of Preferred Stock, will not:
(a) Amend, alter or repeal any provision of, or add any provision to, its Certificate of
Incorporation or By-laws if such action would adversely affect the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, any shares of Preferred Stock, or
increase or decrease the number of shares of Preferred Stock authorized
hereby;
(b) Authorize or issue additional shares of Preferred or Common Stock; or
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(c) Authorize, create or issue any shares of stock or reclassify any shares of units of any
security into shares of stock or authorize, create or issue any Common Stock equivalent.
B. Common Stock
1. Rights. The Class A Common Stock shall be subject to the express
terms of the Class B Common Stock.
2. Voting Common Stock. Each share of Common Stock shall be identical to every other
share of Common Stock other than as expressly required by law and except (a) that so long as the
Class B Common Stock is outstanding, and except as set forth in Sections B.5. and C.4. of this
Article, the entire voting power and all voting rights shall be vested exclusively in the Class A
Common Stock (and the Preferred Stock), and Class B Common Stock shall be non-voting and (b) the
Class B Common Stock shall have the preferences upon liquidation set forth in Article V B.5.(j).
Each holder of shares of Class A Common Stock shall be entitled to one (1) vote for each share
standing in such holders name on the books of the Corporation.
3. Dividends on Common Stock. Subject to the rights of the Preferred Stock, the holders of
Common Stock shall be entitled to receive, and shall share equally share for share,
when permitted by these Articles and as lawfully declared by the Board of Directors, out of the
assets of the Corporation which are by law available therefor, dividends or distributions payable
in cash, in property or in securities of the Corporation.
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4. Automatic Conversion of Class B Common Stock. Forthwith upon consummation of a
sale of shares of Class B Common Stock of the Corporation, either (a) pursuant to the initial
public offering of shares of Common Stock of the Corporation pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or (b) in connection with the private
disposition of all the issued and outstanding shares of Common Stock of the Corporation, each share
of Class B Common Stock so sold and each other share of Class B Common Stock shall automatically,
and without further action on the part of the holders of Common Stock or the Directors of the
Corporation, be converted into shares of Class A Common Stock, and each share of Class A and Class
B Common Stock shall thereafter be deemed a share of Common Stock, each of equal rank, without
class distinction and identical with respect to voting with every other share of Common Stock
(including the right to cumulate votes pursuant to Section 216 of the General Corporation Law of
the State of Delaware), and with respect to rights upon liquidation, and each to be in all other
respects the same as every other share of Common Stock.
5. Special Rights of Class B Common Stock. So long as any shares of Class B Common
Stock shall be unconverted and outstanding, the Corporation shall not, without the approval by the
vote or written consent of the holder or holders of the shares of Class B Common Stock outstanding
at the time:
(a) Amend or repeal any provision of, or add any provision to, the Corporations Certificate
of Incorporation or
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the Corporations By-laws;
(b) Authorize or issue additional shares of Preferred or Common Stock;
(c) Enter into, or permit any subsidiary to enter into, any agreement, indenture or other
instrument other than the Preferred Stock which contains any provision restricting the payment of
dividends or liquidation preference by the Corporation with respect to the Class B Common Stock or
restricting the conversion of the Class B Common Stock to the full extent permitted hereby;
(d) Authorize, create or issue any shares of stock or reclassify any shares or units
of any security into shares of stock or authorize, create or issue any Common Stock equivalent;
(e) Merge or consolidate with, or permit any subsidiary to merge or consolidate with, any other
person or entity or be a party to, or permit any subsidiary to be a party to, any reorganization;
provided, however, that this restriction shall not apply to mergers or consolidations of
subsidiaries with other subsidiaries of the Corporation or, if the Corporation is the surviving
corporation, of the Corporation with wholly-owned subsidiaries;
(f) Sell, lease, transfer or otherwise dispose of assets having a fair market value in excess of one hundred
thousand dollars ($100,000), either in one transaction or in any series of transactions;
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(g) Purchase assets having a fair market value in excess of two hundred thousand dollars
($200,000), in one transaction or in any closely connected series of transactions;
(h) Enter into any new line of business; or
(i) Register any shares of Common Stock of the Corporation for sale to the public in an
initial public offering, unless such offering is to be made pursuant to a firm
underwriting commitment of at least $ per share, and will
not result in the initial holders of the Class B Common Stock owning more than 50% of the total
share of the voting stock of the Corporation immediately after consummation of such public
offering; and
(j) Notwithstanding any provision in these Articles to the contrary, in the event the
Corporation shall be voluntarily or involuntarily liquidated, dissolved or wound up at any time,
when any of the Class B Common Stock shall be outstanding, the holders of the then outstanding
shares of Class B Common Stock shall have a preference senior to the preference of the holders of
all equity securities of the Corporation whether now or hereafter authorized, other than the
Preferred Stock to which the Class B Common Stock shall be
junior in preference upon liquidation and such Class B Common stock preference
shall be equal per share to five (5) times the
book value per share of the shares of Class B Common Stock on
(i) the date of acquisition of such Class B Common Stock by the
initial holders thereof or (ii) on the liquidation date, whichever book value is greater, in each
case computed after giving effect to any
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transaction, conversion or purchase the result of which is the initial acquisition of such Class B
Common Stock.
C. Miscellaneous Stock Provisions.
1. In casting votes for the election of directors each holder of preferred and Common Stock
entitled to vote is entitled to cumulate votes pursuant to Section 216 of the General Corporation
Law of the State of Delaware.
2. In case of any reclassification or change of outstanding Preferred or Common Stock, or in
case of any consolidation or merger of the Corporation with or into another corporation (other than
a merger with another corporation in which the Corporation is the surviving corporation and which
does not result in any reclassification or change), the surviving corporation shall,
without payment of additional consideration therefor, issue new Preferred Stock and Class A and
Class B Common Stock, provided that, upon conversion of the Preferred and Class B Common Stock, the
holders thereof shall receive the kind and amount of shares of stock, securities, money and
property receivable upon such reclassification, change, consolidation or merger as if such
conversion had taken place immediately prior to such reclassification, change, consolidation or
merger. Such new Preferred and Common Stock shall provide for adjustments which shall be as nearly
equivalent as practicable to the adjustments provided for here
and shall similarly apply to successive reclassifications, changes, consolidations and mergers.
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3. All shares of Common Stock which may be issued upon conversion of the Preferred or Class B
Common Stock will, upon issuance, be duly issued, fully paid and non-assessable and free from all
taxes, liens, and charges with respect to the issue thereof .
4. Indemnification. Exercise of the powers of the Corporation under Section 145(a) and (b),
and any determination made by the Corporation pursuant to Section 145(d) of the General Corporation
Law of the State of Delaware, shall be made only upon the unanimous written consent of the holders
of all the issued and outstanding shares of Preferred and Class A and Class B Common Stock of the
Corporation.
5. Mechanics of Conversion. The holders of any shares of Preferred Stock may exercize
their optional conversion rights by surrendering to the Corporation or any transfer agent of the
Corporation the certificate or certificates for the shares to be converted, accompanied by written
notice specifying the number of shares to be converted. Upon the occurrence of the automatic
conversions of Preferred and Class B Common Stock pursuant to these Articles the outstanding stock
shall be converted without any further action by the holders of such shares and whether or not the
certificates representing such shares are surrendered to the
Corporation or its transfer agent;
provided that the Corporation shall not be obligated to issue to any such holder certificates
evidencing the shares of Common Stock issuable upon such conversion unless the certificate or
certificates evidencing the outstanding shares
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are either delivered to the Corporation or any transfer agent of the Corporation. Optional
conversion shall be deemed to have been effected on the date when notice of an election to convert
and the certificate or certificates for shares to be converted are delivered, and automatic
conversion on the date of the occurrence of the automatic event specified herein as the case may
be, and such date is referred to herein as the Conversion Data. Upon conversion of the Class B
Common Stock into Class A Common Stock pursuant to Article V.B.4. all distinctions between Class A
and Class B Common Stock are eliminated and all shares of Class A Common Stock shall automatically
and without further action on behalf of the Corporation become shares of Common Stock of the
Corporation. As promptly as practicable after each conversion (and after the certificate or
certificates evidencing the outstanding shares are either delivered to the Corporation or any
transfer agent of the Corporation) the Corporation shall issue and deliver to, or upon the written
order of, each holder a certificate or certificates for the number of full shares of Class A Common
Stock or Common Stock as the case may be to which such holder is entitled and a check or cash with
respect to any fractional interest in a share of said Stock. The person in whose name the
certificate or certificates for Class A Common Stock or Common Stock are to be issued shall be
deemed to have become a holder of record of such Stock on the applicable Conversion Date. Upon
optional conversion of only a portion of the number of shares covered by the certificate or
certificates evidencing
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the shares of the Stock delivered for conversion, the Corporation shall issue and deliver to or upon
the written order of the holder of the certificate so surrendered for conversion, at the expense of
the Corporation, a new certificate covering the number of shares of stock representing the
unconverted portion of the certificate so surrendered. All shares converted pursuant to these
Articles shall, upon such conversion, become null and void.
6. Valid Issuance. All shares of Class A Common Stock that are deemed issued upon
conversion of the shares of Class B Common or Preferred Stock, and all shares of Common Stock
outstanding following conversion of the Class B Common Stock and elimination of the Class A and
Class B distinctions, will upon conversion be duly and validly issued, fully paid and nonassessable
and free from all taxes, liens and charges with respect to the issuance thereof, and the
Corporation shall take no action that will cause a contrary result.
ARTICLE VI
The names and mailing addresses of the incorporators are as follows:
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NAME
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MAILING ADDRESS |
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Gregory M. Morey
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40 Central Park South |
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New York, New York 10019 |
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ARTICLE VII
The Corporation is to have perpetual existence.
In limitation of the powers of the Board of Directors, the holders of the shares of Preferred
and Common Stock are expressly authorized to make, alter or repeal the By-laws of the Corporation.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of Delaware, as
the By-laws may provide. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-laws of the Corporation.
ARTICLE IX
The Corporation reserves the right by vote of a majority of the
holders of Class A and Class B Common Stock each voting as a class to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are granted
subject to this reservation.
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THE UNDERSIGNED, being the President and Secretary of the
Corporation, for the purpose of amending and restating the Certificate of Incorporation
of the Corporation, does make this certificate, hereby declaring and certifying this
Restated Certificate of Incorporation was proposed unanimously by the Board of Directors of
the Corporation, and was adopted by the unanimous vote of the holders of the issued and
outstanding shares of the Corporation all pursuant to Sections 242 and 245 of the
Corporation Law of the State of Delaware, and the undersigned accordingly hereunto sets his
hand this 29th day of Sept. 1989.
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/s/ G. Michael Shannon
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G. MICHAEL SHANNON, President |
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ATTEST |
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/s/ G. Michael Shannon
G. MICHAEL SHANNON, Secretary
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FILED
AUG 29 1989
/s/ [ILLEGIBLE] SECRETARY OF STATE |
CERTIFICATE OF INCORPORATION
OF
ENVIRONMENTAL DEVELOPMENT CORP.
1. The name of the corporation is Environmental Development Corp.
2. The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is:
To engage in the general business of handling, managing and disposing of
sanitary and industrial waste, and to carry on such activities of every
kind or nature as may be allied or incidental to such general business.
To engage in any lawful act or activity for which corporations may be organized under
the General Corporation Law of
Delaware.
4. The total number of shares of stock which the corporation shall have authority to
issue is three thousand (3,000); all of such shares shall be without par value.
5. The name and mailing address of each incorporator is as follows:
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NAME
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MAILING ADDRESS |
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Gregory M. Morey
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722 Osborn, Phoenix, Arizona 85014 |
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred by statute, the board of
directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless the by-laws of the
corporation shall so provide.
Meetings of stockholders may be held within or without the State of Delaware, as the by-laws
may provide. The books of the corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as may be designated from time to
time by the board of directors or in the by-laws of the corporation.
9. The corporation reserves the right to amend, alter, change or repeal any provision
contained in this certificate of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make
this certificate, hereby declaring and certifying that this is our act and deed and the facts
herein stated are true, and accordingly have hereunto set our hands this 25th day of
August, 1989.
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/s/ Gregory M. Morey
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Gregory M. Morey |
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RECEIVED FOR RECORD
AUG 31, 1989
EVELYN T. ALEMAR, RECORDER
Restated
Certificate of Incorporation
of
Environmental Development Corp.
Environmental Development Corp. hereby amends and restates its Certificate of Incorporation in
its entirety as follows:
ARTICLE I
The name of the Corporation is:
Environmental Development Corp.
ARTICLE II
The address of the Corporations registered office in the State of Delaware is 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name of the Corporations registered
agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purpose to be conducted or promoted is to engage in the general
business of handling, managing, transporting and disposing of sanitary and industrial waste, and to
carry on such activities of every kind or nature as may be allied or incidental to such general
business.
ARTICLE IV
A. The total number of shares of all classes of stock which the Corporation shall
have authority to issue is seventeen thousand eight hundred and forty (17,840) shares,
consisting of two thousand (2,000) shares of Series A Convertible Preferred Stock, par value
one thousand three hundred thirty dollars ($1,330) per share (Preferred Stock), ten thousand
(10,000) shares of Class A Common Stock, without par value (Class A Common Stock), and five
thousand eight hundred and forty (5,840) shares of Class B Common Stock, without par value
(Class B Common Stock).
B. Two thousand (2,000) shares of Class A Common Stock are reserved for issuance to
the holders of shares of Preferred Stock upon conversion thereof as provided in these
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Articles; five thousand eight hundred and forty (5,840) shares of Class A Common Stock are reserved
for issuance to the holders of shares of Class B Common Stock upon conversion thereof pursuant to
these Articles; and all shares of Class B Common Stock are reserved for issuance to the holders of
the Corporations convertible debt, and their successors and assigns, upon exercise of said
holders conversion rights under the Loan Agreement dated as of November 27, 1989 between the
Corporation, as borrower, Lornaco, Inc., as agent, and the lenders parties thereto, as said
agreement may be amended or modified from time to time (hereinafter referred to as the Loan
Agreement).
C. Holders of shares of Preferred Stock, Class A Common Stock and Class B Common Stock shall
have such rights as are provided herein and by law.
ARTICLE V
The designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions of each class of stock are as follows:
A. Preferred Stock.
1. Preferred Dividends. (a) The Board of Directors of the Corporation shall
declare, the Corporation shall pay and the holders of the Preferred Stock shall be entitled to
receive, out of the funds of the Corporation legally available therefor under the General
Corporation Law of the State of Delaware, cumulative dividends in cash on the Preferred Stock from
the date of issue at a rate per annum equal to eleven percent (11%) of the par value thereof. All
dividends described in this paragraph shall be due and payable on March 15, June 15, September 15
and December 15 of each year (each of such dates being a Dividend Payment Date), in
preference to and in priority over dividends on the Class A Common Stock and the Class B Common
Stock (herein referred to collectively as the Common Stock); provided, however, that although
dividends shall begin to accrue immediately upon issuance of shares of Preferred Stock, the first
payment of current and accrued dividends shall not be due until the first Dividend Payment Date
occurring after two years from the issue date. Due but unpaid dividends shall compound annually.
Dividends shall be paid to the holders of record at the close of business on the date specified by
the Board of Directors of the Corporation at the time such dividend is declared; provided, however,
that such date shall not be more than sixty (60) days nor less than ten (10) days prior to the
respective Dividend Payment Date. Each of such quarterly dividends shall be fully cumulative and
shall accrue (whether or not declared) from the first day of the Quarterly Dividend Period (as
defined below), except that
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with respect to the initial quarterly dividend, such dividend shall accrue from the issue date.
Quarterly Dividend Period means each quarterly period commencing on March 16, June 16, September
16, and December 16 in each year and ending on and including the day next preceding the first day
of the next Quarterly Dividend Period. Dividends shall accrue on a daily basis without regard to
the occurrence of a Dividend Payment Date or the declaration of any dividend. Without limiting the
foregoing, the holders of Preferred Stock shall be entitled to receive the cash and property, if
any, to be paid and released to such holders in accordance with the provisions of clause (ii) of
the proviso to paragraph (c) below.
(b) Dividends payable on the Preferred Stock for any period of less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in the period for which payable.
(c) So long as any shares of Preferred Stock are outstanding, the Corporation shall not
declare, pay or set apart for payment any dividend on any class of Common Stock or make any payment
on account of, or set apart any money for a sinking or other similar fund for, the purchase, or
other retirement of, any class of Common Stock, or warrants, rights, calls or options exercisable
for or convertible into any class of Common Stock, or make any distribution in respect thereof,
either directly or indirectly, whether in cash, obligations or shares of the Corporation or other
property, and shall not permit any corporation or other entity directly or indirectly controlled by
the Corporation to purchase or otherwise retire any class of Common Stock or any warrants, rights,
calls or options exercisable for or convertible into any class of
Common Stock; provided, however,
that the restrictions contained in this paragraph shall not apply to (i) any distributions or
dividends of the Corporations common stock to the holders of Class A Common Stock or Class B
Common Stock (subject to the approval or consent of the holders of a majority of the shares of
Preferred Stock outstanding at such time required pursuant to paragraph A.5. of this Article V),
(ii) any distributions or dividends of cash or property (other than any shares of the capital stock
of the Corporation) to the holders of Class A Common Stock and Class B Common Stock if an escrow is
established by the Corporation to hold cash or property (of the same character and in the same
proportional amounts as between cash and property as is paid to the holders of Common Stock) equal
to twenty percent (20%) of the sum of (A) that amount of cash and property distributed to the
holders of the Common Stock of the Corporation at such time plus (B) that amount of cash and
property to be placed in escrow pursuant to this paragraph (c) at such time, the terms of such
escrow to provide for the payment and release of a pro rata portion of such cash and property to
each holder of Preferred Stock at the time of the conversion of all or any portion of such holders
Preferred
-4-
Stock into Class A Common Stock pursuant to these Articles or (iii) the issuance of shares of Class
B Common Stock to the holders of the Corporations convertible debt, and their successors and
assigns, under the Loan Agreement upon exercise of said holders conversion rights thereunder, the
conversion of Class B Common Stock to Class A Common Stock or the conversion of Preferred Stock to
Class A Common Stock, in each case as contemplated by paragraph B. of Article IV.
2. Preference Upon Liquidation, Dissolution or Winding Up.
Notwithstanding any provision in these Articles to the contrary, in the event the Corporation
shall be voluntarily or involuntarily liquidated, dissolved or wound up at any time when any of the
Preferred Stock shall be outstanding, the holders of the then outstanding shares of Preferred Stock
shall have a preference senior to any preference of the holders of all other equity securities of
the Corporation, whether now or hereafter authorized (including, without limitation, the Class B
Common Stock), and such Preferred Stock preference shall be equal per share to the par value of,
plus dividends accumulated on, each outstanding share of Preferred Stock as of the date of such
liquidation, dissolution or winding up (as adjusted to reflect any combination or subdivision of
such shares). Except as provided in the preceding sentence, the holders of Preferred Stock shall
not be entitled to any distribution in the event of a liquidation, dissolution or winding up of the
Corporation. If, upon any such liquidation, dissolution or winding up of the Corporation, the net
assets of the Corporation distributable among the holders of the then outstanding shares of
Preferred Stock shall be insufficient to permit the payment in full to such holders of the
preferential amounts to which they are entitled, then the entire net assets of the Corporation
shall be distributed among the holders of the Preferred Stock ratably in proportion to the full
amounts to which they would otherwise be respectively entitled. The merger or consolidation of the
Corporation into or with another person or entity (other than a merger or consolidation into or
with any wholly-owned subsidiary of the Corporation) or the sale, transfer, mortgage, pledge or
lease of all or substantially all of the assets of the Corporation shall, upon the affirmative vote
of and tender of all shares of stock held by the holders of all the Preferred Stock then
outstanding, be deemed to be a liquidation, dissolution or winding up of the Corporation under this
paragraph; provided, however, that the mortgage or pledge of substantially all
the assets of the Corporation to secure debt outstanding under the Senior Term Loan Agreement dated
as of November 27, 1989 between the Corporation, as borrower, and Mitsui Nevitt Capital
Corporation, or any assignee thereof or successor thereto, as lender, as said senior term loan
agreement may be amended or modified from time to time (hereinafter referred to as the Senior Term
Loan Agreement) shall not be deemed to be a liquidation, dissolution or winding up of the
Corporation under this paragraph.
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3. Preferred Voting Rights. Except as otherwise required by law or by these Articles,
the shares of Preferred Stock shall be voted together with the shares of the Corporations Class A
Common Stock as a single class. Such holders shall be entitled to one vote for each such share
standing in such holders name on the books of the Corporation.
4. Preferred Stock Conversion Rights. The Preferred Stock shall be convertible into
Class A Common Stock as follows:
(a) Optional Conversion. Subject to and upon compliance with the provisions
of this Article, the holder of any shares of Preferred Stock shall have the right, at such
holders option, at any time or from time to time prior to September 30, 1994, to convert
each share of Preferred Stock into one share of Class A Common Stock.
(b) Automatic Conversion. Each outstanding share of Preferred Stock shall automatically
be converted, without further action on the part of the holders of such Preferred Stock or
the Directors of the Corporation, into one share of Class A Common Stock (i) on September 30,
1994, or (ii) the closing of an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the Securities
Act), covering the issuance, offering and sale of Class A Common Stock for the
account of the Corporation in which the aggregate gross proceeds received by the Corporation
equals or exceeds twenty-five million dollars ($25,000,000), whichever is earlier.
5. Special Rights of Preferred Stock. In addition to any other rights provided by
law, so long as any Preferred Stock is outstanding, the Corporation, without first obtaining the
affirmative vote or written consent of the holders of not less than a majority of the outstanding
shares of Preferred Stock, will not:
(a) Amend or repeal any provision of, or add any provision to, the Corporations
Certificate of Incorporation or the Corporations By-laws if such action would adversely
affect the preferences, rights, privileges or powers of, or the restrictions provided for the
benefit of, any shares of Preferred Stock, or increase or decrease the number of shares of
Preferred Stock authorized hereby;
(b) Authorize or issue additional shares of Preferred Stock or Common Stock; or
(c) Authorize, create or issue any shares of stock or reclassify any shares or
units of any security into shares of stock or authorize, create or issue any stock
equivalent.
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Notwithstanding anything to the contrary contained in this paragraph A.5. of Article V, no approval
or consent of any holder of Preferred Stock shall be required in connection with (i) the issuance
of Class B Common Stock to the holders of the Corporations convertible debt, and their successors
and assigns, under the Loan Agreement upon the exercise by said holders of their conversion rights
thereunder or the conversion of Class B Common Stock to Class A Common Stock, in each case as
contemplated by paragraph B. of Article IV or (ii) the authorization and issuance of shares of any
class of the Corporations common stock for issuance, offering and sale pursuant to an underwritten
public offering that the Corporation expects to satisfy the requirements of paragraph A.4.(b) of
this Article.
B. Common Stock.
1. Class B Common Stock. The Class A Common Stock shall be subject to the express
terms of the Class B Common Stock.
2. Voting Common Stock. Each share of Class A Common Stock and Class B Common Stock
shall be identical to every other share of Common Stock except as expressly required by law and
except that (a) subject to paragraphs B.5. and C.4. of this Article, the entire voting power and
all voting rights of the Common Stock shall be vested exclusively in the Class A Common Stock, and
the Class B Common Stock shall be non-voting and (b) the Class B Common Stock shall have the
preferences upon liquidation set forth in paragraph B.5. (b) of this Article. Each holder of shares
of the common stock of the Corporation shall be entitled to one (1) vote for each share standing in
such holders name on the books of the Corporation as to any matters on which a holder of such
common stock is entitled to vote.
3. Dividends on Class A Common Stock and Class B Common Stock. The holders of Class A
Common Stock and Class B Common Stock shall be entitled to receive, and shall share equally share
for share, when permitted by these Articles and as lawfully declared by the Board of Directors, out
of the funds of the Corporation legally available therefor, dividends or distributions payable in
cash, in property or in securities of the Corporation except as
provided in paragraph B.5.(b) of
this Article.
4. Class B Common Stock Conversion Rights. The Class B Common Stock shall be
convertible into Class A Common Stock as follows:
(a) Optional Conversion. The holder of any shares of Class B Common Stock
shall have the right, at such holders option, to convert each share of Class B Common Stock
into one share of Class A Common Stock (subject to adjustment pursuant to subparagraph (c)
of this
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paragraph B.4.) at any time and from time to time (i) after the earliest to occur of the following:
(A) as the result of private sales of shares of Class B Common Stock other than the issuance to
the original holders thereof, no record owner of any shares of the Class B Common Stock then
outstanding holds more than twenty-five percent (25%) of the Class B Common Stock on a fully
diluted basis and (B) as a result of private sales of shares of Class B Common Stock other than the
issuance to the original holders thereof, a single record owner holds more than 85.62 percent of
the Class B Common Stock on a fully diluted basis or (ii) in the event any plan or proposal for the
liquidation, dissolution or winding up of the Corporation is adopted by the Board of Directors and
stockholders of the Corporation or is imposed involuntarily upon the Corporation.
(b) Automatic Conversion. Each outstanding share of Class B Common Stock that is
sold in connection with any primary or secondary offering of shares of stock of the Corporation
pursuant to an effective registration statement under the Securities Act shall automatically be
converted in the hands of the purchaser, without further action on the part of the holder or
holders of such Class B Common Stock or the Directors of the Corporation, into one share of Class A
Common Stock (subject to adjustment pursuant to subparagraph (c) of this paragraph B.4.); further,
upon sale of an aggregate of seventy five percent (75%) or more of the shares of Class B Common
Stock on a fully diluted basis pursuant to such registered public offering or offerings, all shares
of Class B Common Stock then outstanding shall automatically be converted into an equal number of
shares of Class A Common Stock (subject to adjustment pursuant to subparagraph (c) of this
paragraph B.4.) without further action on the part of the holder or holders of such Class B Common
Stock or the Directors of the Corporation.
(c) Adjustments to Conversion Price for Diluting Issues:
(i) Special Definitions. For purposes of this paragraph B.4.(c), the following
definitions shall apply;
(1) Options shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Additional Shares of Common Stock or Convertible
Securities.
(2) Original Issue Date shall mean the date on which a share of Class B
Common Stock was first issued.
(3) Conversion Price shall mean initially $100 per share of Class B Common
Stock and shall be
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adjusted and readjusted from time to time as provided in this paragraph B.4.(c). Each share
of Class B Common Stock shall be convertible into the number of shares of Class A Common
Stock determined by dividing $100 by the Conversion Price in effect at the time of
conversion.
(4) Convertible Securities shall mean any evidences of indebtedness, shares
(other than shares of Common Stock) or other securities directly or indirectly convertible
into or exchangeable for Additional Shares of Common Stock.
(5) Additional Shares of Common Stock shall mean all shares of Common Stock issued
(or, pursuant to paragraph B.4.(c)(iii), deemed to be issued) by the Corporation after the
Original Issue Date, other than Class A Common Stock issued or issuable:
(A) upon conversion of Preferred Stock; or
(B) upon conversion of the Corporations Class B Common Stock.
(ii) No Adjustment of Conversion Price. No adjustment in the number of shares of Class A
Common Stock into which the Class B Common Stock is convertible shall be made, by adjustment in the
Conversion Price, in respect of the issuance of Additional Shares of Common Stock or otherwise,
unless the consideration per share (determined pursuant to paragraph B.4.(c)(v) hereof) for
Additional Shares of Common Stock issued or deemed to be issued by the Corporation is less than the
Conversion Price in effect on the date of, and immediately prior to, the issue of such Additional
Shares of Common Stock.
(iii) Issue of Securities Deemed Issue of Additional Shares of Common Stock.
(1) Options and Convertible Securities. In the event
the Corporation at any time or from time to time after the Original Issue Date shall issue, sell, grant or assume any Options or Convertible Securities or shall fix a record date for
the determination of holders of any class of securities entitled to receive any such
Options or Convertible Securities, then, and in each such case, the maximum number of
shares of Common Stock (as set forth in the instrument relating thereto without regard to
any provisions contained therein for a subsequent adjustment of such number) issuable upon
the exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of
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Common Stock issued as of the time of such issue, sale, grant or assumption or, in case such a
record date shall have been fixed, as of the close of business on such record date, provided that Additional Shares of Common Stock shall not be deemed to have been issued for purposes
of adjusting the Conversion Price unless the consideration per share (determined pursuant to
paragraph B.4.(c)(v) hereof) of such Additional Shares of Common Stock would be less than the
Conversion Price in effect on the date of and immediately prior to such issue, or such record date,
as the case may be, and provided further that in any such case in which Additional Shares of Common
Stock is deemed to be issued:
(A) no further adjustment in the Conversion Price shall be made upon the subsequent
issue of Convertible Securities or Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;
(B) if such Options or Convertible Securities by their terms provide, with the
passage of time or otherwise, for any decrease in the consideration payable to the
Corporation, or increase in the number of shares of Common Stock issuable, upon the
exercise, conversion or exchange thereof, the Conversion Price computed upon the original
issue thereof (or upon the occurrence of a record date with respect thereto), and any
subsequent adjustments based thereon, shall, upon any such decrease or increase becoming
effective, be recomputed to reflect such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under such Convertible Securities which
are outstanding at such time;
(C) upon the expiration of any such Options or any rights of conversion or exchange
under such Convertible Securities which shall not have been fully exercised, the
Conversion Price computed upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of a record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration, be recomputed as if:
(I) in the case of such Convertible Securities or Options for Common Stock,
the only Additional Shares of Common Stock issued or sold were the shares of
Common Stock, if any, actually issued or sold upon the exercise of such options
or the
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conversion or exchange of such Convertible Securities and the consideration received for
such Additional Shares of Common Stock was, in the case of Options, the consideration
actually received by the Corporation for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration actually received by the
Corporation upon such exercise, or, in the case of Convertible Securities, the
consideration actually received by the Corporation for the issue, sale or assumption of all
such Convertible Securities which were actually converted or exchanged, plus the additional
consideration, if any, actually received by the Corporation upon such conversion or
exchange, and
(II) in the case of Options for Convertible Securities, only the Convertible
Securities, if any, actually issued or sold upon the exercise thereof were issued at the
time of issue, sale, grant or assumption of such Options, and the consideration received
by the Corporation for the Additional Shares of Common Stock deemed to have been then
issued was the consideration actually received by the Corporation for the issue, sale,
grant or assumption of all such Options, whether or not exercised, plus the consideration
deemed to have been received by the Corporation (determined pursuant to paragraph
B.4.(c)(v)) upon the issue or sale of the Convertible Securities with respect to which
such Options were actually exercised;
(D) no readjustment pursuant to clause (B) or (C) above shall have the effect of increasing
the Conversion Price to an amount which exceeds the lower of (i) the Conversion Price on the
original adjustment date or (ii) the Conversion Price that would have resulted from any issuance of
Additional Shares of Common Stock between the original adjustment date and such readjustment date;
(E) in the case of any Options which expire by their terms not more than 30 days after the
date of issue, sale, grant or assumption thereof, no adjustment of the Conversion Price shall be
made until the expiration or exercise of all such Options, whereupon such adjustment shall be made
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in the same manner provided in clause (C) above; and
(F) if any such record date shall have been fixed and such Options or
Convertible Securities are not issued on the date fixed therefor, the adjustment
previously made in the Conversion Price which became effective on such record date
shall be cancelled as of the close of business on such record date, and thereafter
the Conversion Price shall be adjusted pursuant to subparagraph B.4.(c)(vi) as of
the actual date of their issuance.
(2) Stock Dividends, Stock Distributions and Subdivision. In the
event the Corporation at any time or from time to time after the Original Issue Date shall
declare or pay any dividend or make any other distribution on the Common Stock payable in
shares of Common Stock, or shall effect a subdivision of the outstanding Common Stock, into
a greater number of shares of Common Stock (by reclassification or otherwise than by payment
of a dividend in shares of Common Stock), then and in each such event, Additional Shares of
Common Stock, shall be deemed to have been issued:
(A) in the case of any such dividend or distribution, immediately after the
close of business on the record date for the determination of holders of any class
of securities entitled to receive such dividend or distribution, or
(B) in the case of any such subdivision, at
the close of business on the date immediately prior to the date upon which such corporate action becomes effective.
If such record date shall have been fixed and such dividend or distribution shall not
have been paid on the date fixed therefor, the adjustment previously made in the Conversion
Price which became effective on such record date shall be cancelled as of the close of
business on such record date, and thereafter the Conversion Price shall be adjusted
pursuant to subparagraph B.4.(c)(vi) as of the time of actual payment of such dividend or
distribution.
(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of
Common Stock. In the event the Corporation shall issue or be deemed to issue
Additional Shares of Common Stock (excluding Additional Shares of Common Stock deemed
to be issued pursuant to subparagraph B.4.(c)(iii)(2), which event is dealt with in
subparagraph
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B.4.(c)(vi)) for a consideration per share less than the Conversion Price in effect on the date of
and immediately prior to such issue, then and in such event, the Conversion Price shall be reduced,
concurrently with such issue or sale in order to increase the number of shares of Class A Common
Stock into which the Class B Common Stock is convertible, to a price equal to the lowest
consideration per share for which such Additional Shares of Common Stock are issued
provided that the Conversion Price shall not be reduced below $0.00001.
(v) Determination of Consideration. For purposes of this paragraph B.4.(c), the
consideration received (or deemed to be received) by the Corporation for the issue or sale of any
Additional Shares of Common Stock (or any Additional Shares of Common Stock deemed to be issued
pursuant to paragraph B.4.(c)(iii)(1)) shall be computed as follows:
(1) Cash and Property: The consideration per share received by the
Corporation for the issue or sale of Additional Shares of Common Stock shall:
(A) insofar as it consists of cash, be computed at the aggregate amount of
cash received by the Corporation excluding amounts paid or payable for accrued
interest or accrued dividends;
(B) insofar as it consists of property other than cash, be computed at
the fair value thereof at the time of such issue or sale, as determined in
good faith by the Board of Directors; and
(C) in the event Additional Shares of Common Stock are issued together with
other shares or securities or other assets of the Corporation for consideration
which covers both, be the portion of such consideration so received, computed as
provided in clauses (A) and (B) above, allocable to such Additional Shares of
Common Stock as determined in good faith by the Board of Directors.
(2) Options and Convertible Securities. The consideration per share deemed
to be received by the Corporation for Additional Shares of Common Stock deemed to have
been issued pursuant to paragraph B.4.(c)(iii)(1), relating to Options and Convertible
Securities, shall be determined by dividing
(x) the total amount, if any, actually received by the Corporation as
consideration for the issue, sale, grant or assumption of such
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Options or Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating to such Options or
Convertible Securities without regard to any provision contained therein for a
subsequent adjustment of such consideration) payable to the Corporation upon the
exercise in full of such Options or the conversion or exchange of such Convertible
Securities, or in the case of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the conversion or exchange of such
Convertible Securities, by
(y) the maximum number of Additional Shares of Common Stock (as set forth in
the instruments relating to such Options or Convertible Securities, without regard
to any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(vi) Adjustment for Stock Dividends, Distributions, Subdivisions, Combinations or
Consolidation of Common Stock.
(1) Stock Dividends, Distributions and Subdivisions. In the event the
Corporation shall issue Additional Shares of Common Stock pursuant to paragraph
B.4(c)(iii)(2), relating to stock dividends, distributions and subdivisions, the Conversion
Price in effect immediately prior to such stock dividend, distribution or subdivision shall
each, concurrently with the effectiveness of such stock dividend, distribution or
subdivision, be proportionately decreased.
(2) Combinations or Consolidation of Common Stock. In the event the
outstanding Class A Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Class A Common Stock, the Conversion Price in
effect immediately prior to such combination or consolidation shall each, concurrently with
the effectiveness of such combination or consolidation, be proportionately increased.
(vii) Adjustments for Consolidation, Merger, Sale of Assets, Reorganization,
Etc. In the event the Corporation, after the Original Issue Date, (1) shall consolidate with or
merge into any other corporation or entity and shall not be the continuing or surviving corporation
or entity of such consolidation or merger, or (2) shall permit any other
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corporation or entity to consolidate with or merge into the Corporation and the Corporation shall
be the continuing or surviving corporation but, in connection with such consolidation or merger,
the shares of Class A Common Stock shall be changed into or exchanged for stock or other securities
of any other person or cash or any other property, or (3) shall transfer all or substantially all
of its properties or assets to any other corporation or entity, or (4) shall effect a capital
reorganization or reclassification of the Class A Common Stock (other than a change from par to
no-par value stock or from no-par to par value stock, or a capital reorganization or
reclassification resulting in the issue of Additional Shares of Common Stock for which adjustment
in the Conversion Price is provided in paragraph B.4(c)(iv)), then, and in each such event, proper
provision shall be made so that, upon the basis and the terms and in the manner provided in this
paragraph B.4(c)(vii), the holder of Class B Common Stock, upon the conversion thereof at any time
after the consummation of such consolidation, merger, transfer, reorganization or reclassification,
shall be entitled to receive, in lieu of the shares of Class A Common Stock issuable upon such
conversion prior to such consummation, the stock and other securities, cash and property to which
such holder would have been entitled upon such consummation if such holder had converted such Class
B Common Stock immediately prior thereto, subject to adjustments (subsequent to such corporate
action) as nearly equivalent as possible to the adjustments provided for in this paragraph B.4.(c).
Notwithstanding anything contained herein to the contrary, the Corporation will not effect any of
the transactions described in clauses (1) through (4) above unless, prior to the consummation
thereof, each corporation (other than the Corporation) which may be required to deliver any stock,
securities, cash or property upon the conversion of Class B Common Stock shall assume, by written
instrument delivered to each holder of Class B Common Stock, the obligation to deliver to such
holder such shares of stock, securities, cash or property as such holder may be entitled to receive
upon such conversion, and such corporation shall have furnished to each holder of Class B Common
Stock an opinion of counsel for such corporation, which counsel shall be reasonably satisfactory to
such holder, stating that the holder of such Class B Common Stock shall thereafter be entitled to
receive, upon the conversion of such share, the stock, securities, cash or property which such
corporation may be required to deliver pursuant to the terms hereof.
(viii) No Impairment. The Corporation will not, through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary
action, avoid the observance or performance of any of the terms to be
-15-
observed or performed hereunder by the Corporation but will at all times in good faith assist
in the carrying out of all the provisions of this paragraph B.4.(c) and in the taking of all
such action as may be necessary or appropriate in order to protect the conversion rights of
the holders of the Class B Common Stock against impairment.
(ix) Certificate as to Adjustments. Upon the
occurrence of each adjustment or readjustment of the Conversion Price pursuant to this
paragraph B.4(c), the Corporation at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each holder of Class B Common
Stock a certificate setting forth such adjustment or readjustment and showing in detail the
facts upon which such adjustment or readjustment is based, including a statement of (i) the
consideration received or to be received by the Corporation for any Additional Shares of
Common Stock issued or sold or deemed to have been issued, (ii) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (iii) the Conversion Price in
effect immediately prior to such issue or sale and as adjusted and readjusted on account
thereof.
(x) Common Stock Reserved. The Corporation shall at all times reserve and keep
available out of its authorized but unissued Class A Common Stock such number of shares of
Class A Common Stock as shall from time to time be sufficient to effect conversion of the
Class B Common Stock.
5. Special Rights of Class B Common Stock. (a) The Corporation shall not, without
the approval by the affirmative vote or written consent of the holder or holders of a majority of
the shares of Class B Common Stock outstanding at the time:
(i) Amend or repeal any provision of, or add any provision to, the Corporations
Certificate of Incorporation or the Corporations By-laws;
(ii) Authorize or issue additional shares of stock (other than the issuance of shares
of Class B Common Stock or Class A Common Stock upon the exercise of conversion rights, in
each case as contemplated by paragraph B. of Article IV) or offer or sell any shares of stock
in connection with a public offering pursuant to an effective registration statement under
the Securities Act;
(iii) Enter into, or permit any subsidiary to enter into, any agreement, indenture or
other instrument which contains any provision restricting the payment of dividends or
liquidation preference by the Corporation with respect to the Class B Common Stock or
restricting the conversion
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of the Class B Common Stock to the full extent permitted hereby (other than the Loan
Agreement and the Senior Term Loan Agreement to the extent the same contain restrictions on
the payment of dividends);
(iv) Reclassify any shares or units of any security into shares of stock or authorize,
create or issue any stock equivalent;
(v) Merge or consolidate with, or permit any subsidiary to merge or consolidate with,
any other person or entity or be a party to, or permit any subsidiary to be a party to, any
reorganization; provided, however, that this restriction shall not apply to mergers or
consolidations of subsidiaries of the Corporation with other subsidiaries of the Corporation
or, if the Corporation is the surviving corporation, of the Corporation with wholly-owned
subsidiaries of the Corporation (in each case so long as the rights, preferences and powers
of the respective classes of the Corporations stock remain unchanged);
(vi) Sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of all or
substantially all assets of the Corporation, either in one transaction or in any series of
transactions (other than the mortgage or pledge of substantially all the assets of the
Corporation to secure debt outstanding under the Senior Term Loan Agreement);
(vii) Reclassify any securities of the Corporation (including any reverse stock split),
or recapitalize the Corporation, or purchase or otherwise acquire, redeem or retire any
issued and outstanding shares of the capital stock of the Corporation or any warrants,
rights, calls or options exercisable for or convertible into any shares of the capital stock
of the Corporation; provided, however, that no approval or consent of the holders of the
Class B Common Stock shall be required for the Corporation to perform its obligation to
purchase shares of the Corporations capital stock pursuant to the terms of a certain
Agreement Regarding Shares of Environmental Development Corp. dated November 27, 1989 among
the Corporation, Thomas H. Van Weeldon, Jim Van Weeldon, Illinois Development Corporation,
Lee Brandsma and Larry Groot; or
(viii) Adopt any plan or proposal for the liquidation, dissolution or winding up of the
Corporation.
(b) Notwithstanding any provision in these Articles to the contrary, in the event the
Corporation shall be voluntarily or involuntarily liquidated, dissolved or wound up at any time
when any of the Class B Common Stock shall be
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outstanding, the holders of the then outstanding shares of Class B Common Stock shall have a
preference senior to any preference of the holders of all other equity securities of the
Corporation, whether now or hereafter authorized (other than the Preferred Stock which shall be
senior in preference to the Class B Common Stock upon liquidation), and such Class B Common Stock
preference shall be equal per share to three (3) times an amount equal to (i) the maximum principal
amount of the debt outstanding under the Loan Agreement at any time prior to the date on which such
liquidation, dissolution or winding up becomes effective divided by (ii) the sum of the number of
shares of Class B Common Stock outstanding on such date, the number of shares of Class B Common
Stock issuable under the terms of the Loan Agreement and the number of shares of Class B Common
Stock converted into Class A Common Stock prior to such date. If, upon any such liquidation,
dissolution or winding up of the Corporation, the net assets of the Corporation distributable among
the holders of the then outstanding shares of Class B Common Stock shall be insufficient to permit
the payment in full to such holders of the preferential amounts to which they are entitled, then
such net assets of the Corporation shall be distributed among the holders of the Class B Common
Stock ratably in proportion to the full amounts to which they would otherwise be respectively
entitled. The merger or consolidation of the Corporation into or with another person or entity
(other than a merger or consolidation into or with any wholly-owned subsidiary of the Corporation)
or the sale, transfer, mortgage, pledge or lease of all or substantially all of the assets of the
Corporation shall, upon the affirmative vote of and tender of all shares of stock held by the
holders of all the Class B Common Stock then outstanding, be deemed to be a liquidation,
dissolution or winding up of the Corporation under this paragraph; provided, however, that the
mortgage or pledge of substantially all the assets of the Corporation to secure debt outstanding
under the Senior Term Loan Agreement or the Loan Agreement shall not be deemed to be a liquidation,
dissolution or winding up of the Corporation under this paragraph.
C. Miscellaneous Stock Provisions.
1. Cumulative Voting. In casting votes for the election of directors each holder of
Preferred Stock and Class A Common Stock is entitled to cumulate votes pursuant to Section 214 of
the General Corporation Law of the State of Delaware.
2. Reclassification, Merger, Etc. In case of any reclassification or change of outstanding
shares of stock, or in case of any consolidation or merger of the Corporation into or with another
corporation (other than a merger with or consolidation into another corporation in which the
Corporation is the surviving corporation and which does not result in any reclassification or
change), the surviving corporation shall,
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without requiring or obtaining payment of additional consideration therefor, authorize for
issuance new Class A Common Stock and issue new Preferred Stock and Class B Common Stock, such
that, upon conversion of the Preferred Stock and Class B Common Stock, the holders thereof shall
receive and be the holders of stock rights and the number of shares as if conversion of the
Preferred Stock and Class B Common Stock had taken place immediately prior to such
reclassification, change, consolidation or merger; provided, however, that the foregoing provision
shall not affect the requirement that approval be obtained from the holders of Preferred Stock and
Class B Common Stock in connection with any such transaction, as provided in these Articles. Such
new stock shall provide for adjustments in number of shares which shall be equivalent to the
adjustments provided for herein and shall similarly apply to successive reclassifications, changes,
consolidations and mergers.
3. Issuance of Class A Common Stock upon Conversion. All shares of Class A Common
Stock which may be issued upon conversion of the Preferred Stock and Class B Common Stock will,
upon issuance, be duly and validly issued, fully paid and non-assessable and free from all taxes,
liens, and charges with respect to the issue thereof.
4. Indemnification. Exercise of the powers of the Corporation under Sections 145(a) and (b),
and any determination made by the Corporation pursuant to Section 145(d) of the General Corporation
Law of the State of Delaware, shall be made only upon the written consent of the holders of a
majority of the issued and outstanding shares of Preferred Stock, Class A Common Stock and Class B
Common Stock of the Corporation each voting as a separate class.
5. Mechanics of Conversion. (a) The holders of any
shares of Preferred Stock may exercise their optional conversion rights by surrendering to the
Corporation or any transfer agent of the Corporation the certificate or certificates for the shares
to be converted, accompanied by written notice specifying the number of shares to be converted.
Following the occurrence of any of the events referred to in these Articles that gives rise to
optional conversion rights for the holders of shares of Class B Common Stock, the holders of any
shares of Class B Common Stock may exercise their optional conversion rights by surrendering to the
Corporation or any transfer agent of the Corporation the certificate or certificates for the shares
to be converted, accompanied by written notice specifying the number of shares to be converted.
Optional conversion of shares of Preferred Stock or Class B Common Stock, as the case may be, shall
be deemed to have been effected on the date when notice of an election to convert and the
certificate or certificates for the shares to be converted are delivered to the Corporation or any
transfer agent of the Corporation as provided herein. In
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addition, as promptly as practicable following the occurrence of any of the events referred to
in these Articles that gives rise to optional conversion rights for the holders of shares of Class
B Common Stock, the Corporation shall issue and deliver to each holder of shares of Class B Common
Stock a certificate or certificates for the number of shares of Class B Common Stock owned by such
holder which certificate or certificates shall indicate that such Class B Common Stock is
convertible at any time at the option of the holder into Class A Common Stock; such certificate or
certificates shall be delivered after the certificate or certificates evidencing the shares of
Class B Common Stock then outstanding and owned by such holder are delivered to the Corporation or
any transfer agent of the Corporation.
(b) Simultaneously with consummation of any sale or event effecting automatic conversion of
Preferred Stock or Class B Common Stock, as the case may be, pursuant to these Articles, the shares
of Preferred Stock or Class B Common Stock so affected shall be converted without any further
action by the holders of such shares and whether or not the certificates representing such shares
are surrendered to the Corporation or its transfer agent; provided that the Corporation shall not
be obligated to issue to any such holder certificates evidencing
the shares of Class A Common Stock issuable upon such
conversion unless the certificate or certificates evidencing the outstanding shares are
delivered either to the Corporation or any transfer agent of the Corporation. The person or entity
in whose name the certificate or certificates for Class A Common Stock are to be issued upon such
conversion of shares of Preferred Stock or Class B Common Stock, as the case may be, shall be
deemed to have become a holder of record of such Class A Common Stock on the date of the occurrence
of the automatic event referred to herein.
(c) All shares converted pursuant to these Articles shall, upon such conversion, become null
and void and shall not thereafter be reissued.
ARTICLE VI
The Corporation is to have perpetual existence.
In limitation of the powers of the Board of Directors, the holders of the shares of Preferred
Stock and Class A Common Stock are expressly authorized to make, alter or repeal the By-laws of the
Corporation (subject to the approval of the holders of a majority of the Class B Common Stock then
outstanding).
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ARTICLE VII
Meetings of stockholders may be held within or without the State of Delaware, as the By-laws
of the Corporation may provide. The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the By-laws of the Corporation.
ARTICLE VIII
The Corporation reserves the right by vote of a majority of the holders of Preferred Stock,
Class A Common Stock and Class B Common Stock each voting as a separate class to amend, alter,
change or repeal any provision contained in this Restated Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation.
THE UNDERSIGNED, being the President of the Corporation, for the purpose of amending and
restating the Certificate of Incorporation of the Corporation, does make this certificate, hereby
declaring and certifying that this Restated Certificate of Incorporation was duly proposed,
declared advisable and submitted to the stockholders of the Corporation for consideration by the
Board of Directors of the Corporation and was duly adopted by the unanimous vote or written consent
of the holders of the issued and outstanding shares of the stock of the Corporation all in
accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and
the undersigned accordingly hereunto sets his hand this 27th day of November, 1989.
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/s/ G. Michael Shannon
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G. Michael Shannon |
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President |
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ATTESTED BY: |
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/s/ G. Michael Shannon
G. Michael Shannon
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Secretary |
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CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
ENVIRONMENTAL DEVELOPMENT CORP.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
The undersigned, being the President and Secretary of
Environmental Development Corp., a Delaware corporation (the
Corporation), in order to amend the Corporations Certificate
of Incorporation, hereby certifies as follows:
FIRST: The name of the Corporation is:
Environmental Development Corp.
SECOND: A Restated certificate of Incorporation
(the Certificate of Incorporation) was filed in the
office of the Secretary of State of Delaware on the 27th
day of November, 1990, and a copy thereof, certified by
said Secretary of State, was summarily filed for record
in the office of the Recorder of New Castle County,
Delaware.
THIRD: Article IV, Section B of the Certificate
of Incorporation, regarding the Corporations stock
issuance, is hereby amended to read as follows:
B. Two thousand (2,000) shares of Class A Common Stock are reserved for
issuance to the holders of shares of Preferred Stock upon conversion
thereof as provided in these Articles; five thousand eight hundred forty
(5,840) shares of Class A Common Stock are reserved for issuance to the
holders of shares of Class B Common Stock upon conversion thereof
pursuant to these Articles; and four
thousand five hundred forty (4,540) shares of Class B Common Stock are reserved
for issuance to the holders of the Corporations convertible debt, and their
successors and assigns, upon exercise of said holders conversion rights under
the Loan Agreement dated as of November 27, 1989, between the Corporation, as
borrower, Lornaco, Inc., as agent, and the lenders parties thereto, as said
agreement may be amended or modified from time to time (hereinafter referred to
as the Loan Agreement).
FOURTH: Article V Section B.4. (c) (i) (5) of the
Certificate of Incorporation is hereby amended by
deleting such provision and replacing it in its entirety
with the following language:
(5) Additional shares of Common stock shall mean all shares of
Common stock issued (or, pursuant to paragraph B.4.(c)(iii), deemed to be issued)
by the Corporation after the Original issue Date, other than:
(A) Class A Common stock issued or issuable upon conversion of
Preferred Stock or upon conversion of the corporations Class
B Common Stock; or
(B) the issuance of 1,100 shares of class B Common stock to
Mitsui Nevitt Capital Corporation.
FIFTH: Article V Section B.5.(iii) of the Certificate of Incorporation is hereby deleted in
its entirety, and each subsequent subsection are renumbered (iii), (iv), (v), (vi) and
(vii), respectively.
SIXTH: That such amendments have been duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware by the unanimous written
consent of all of the stockholders entitled to vote in accordance with the provisions of
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Section 228 of the General Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, I have hereunto signed my name and affirm that the statements made herein
are true this 6th day of December, 1990.
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ENVIRONMENTAL DEVELOPMENT CORP.
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/s/ Thomas H. Van Weelden
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Thomas H. Van Weelden |
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Secretary |
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exv3w476
Exhibit 3.476
AMENDED AND RESTATED BYLAWS
OF
ENVIRONMENTAL DEVELOPMENT CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
16
exv3w477
Exhibit 3.477
ARTICLES OF INCORPORATION
TO: JIM EDGAR, Secretary of State
I/We, the incorporator(s), being one or more natural persons of the age of twenty-one years or
more or a corporation for the purpose of forming a corporation under The Business Corporation
Act of the State of Illinois, do hereby adopt the following Articles of Incorporation:
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ARTICLE ONE
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The name of the corporation is: ENVIRONMENTAL RECLAMATION COMPANY |
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ARTICLE
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The name and address of the initial registered agent and registered office are: |
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Registered Agent |
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Henry E. Kramer |
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First Name
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Middle Name
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Registered Office |
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600 Jackson Avenue |
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Number
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Street
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(Do not use P.O. Box) Suite # |
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Charleston, |
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61920 |
Coles County |
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ARTICLE THREE
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The duration of the corporation is XX perpetual OR __________________ years. |
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ARTICLE FOUR
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The purposes for which the corporation is organized are: |
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See attached Exhibit A |
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ARTICLE FIVE
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Paragraph 1: The number of shares which the corporation shall be authorized to
issue, itemized by class, series and par value, if any, is |
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*Par Value per share |
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Number of shares authorized |
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common |
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N/A |
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no par |
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10,000 |
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Paragraph 2: The preferences, qualifications,
limitations, restrictions and the special or relative rights in
respect of the shares of each class are: |
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None |
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ARTICLE SIX
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The number of shares which the corporation proposes to issue
without further report to the Secretary of State, itemized by
class, series, and par value, if any, and the consideration to
be received by the corporation therefor (expressed in dollars) are: |
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*Par Value |
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Number of shares |
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Total consideration |
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per share |
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to be issued |
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to be received therefor |
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common |
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N/A |
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no par |
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1,000 |
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25,000.00 |
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$ |
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(Use NPV if no Par Value) |
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ARTICLE SEVEN
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The corporation will not commence business until at least one
thousand dollars has been received as consideration for the
issuance of shares. |
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ARTICLE EIGHT
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The number of directors to be elected at the first meeting of the
shareholders is 2. |
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ARTICLE NINE
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(Complete EITHER A or B) |
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A. All the property of the corporation is to be located in this
State and all of its business is to be transacted at or from places
of business in this State, or the incorporator(s) elect to pay
the initial franchise tax on the basis of the entire consideration to
be received for the issuance of shares. |
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B. Paragraph 1: It is estimated that the value of all property
to be owned by the corporation for the following year wherever
located will be |
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$ ____________ |
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Paragraph 2: It is estimated that the value of the property
to be located within the State of Illinois during the following
year
will be:
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$ ____________ |
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Paragraph 3: It is estimated that the gross amount of
business which will be transacted by the corporation during the
following year will be
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$ ____________ |
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Paragraph 4: It is estimated that the gross amount of business
which will be transacted at or from places of business in the
State of Illinois during the following year will be:
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$ ____________ |
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I/WE the incorporator(s) declare that I/we have examined the foregoing Articles of Incorporation and that the
statements contained therein are, to the best of my/our knowledge and belief, true, correct and
complete. Executed this 26th day of October, 1983.
(Signatures must be in ink. Carbon copy, xerox or rubber stamp signatures are not acceptable. )
NOTE: If a corporation acts as incorporator the name of the corporation and the state of
incorporation shall be shown and the execution must be by its President or Vice-President and verified by
him, and the corporate seal shall be affixed and attested by its Secretary or an Assistant Secretary.
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Signature and Names
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Post Office Address |
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1.
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1.
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W. Route 316, P.O. Box 73 |
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Signature
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Carl Ball
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Charleston, Illinois 61920 |
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Name (please print)
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Signature
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Name (please print)
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3.
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3. |
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Signature
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The purposes for which the corporation is organized are:
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To engage in the operation of a landfill
business. |
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To manufacture, produce, acquire, distribute, buy,
sell, lease, and trade, or deal in and with all
types of goods, wares, and merchandise. |
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To acquire, own, use, convey, and otherwise dispose
of and deal in real property or any interest therein. |
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To advise, manage, and provide all types of services
not otherwise prohibited under the Illinois Business
Corporation Act. |
Exhibit A
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File# 5324-634-6 |
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This Space For Use By |
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Secretary of State |
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Date: 5-30-96 |
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License Fee: $ |
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Franchise Tax: $25 |
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Filing Fee: $ |
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Clerk: BH |
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Submit in Duplicate
Remit payment in Check or Money
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JIM EDGAR
Secretary of State State of Illinois
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Order payable to Secretary of
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State.
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ARTICLES OF AMENDMENT |
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DO NOT SEND CASH!
Pursuant to the provisions of The Business Corporation Act of 1983, the
undersigned corporation hereby adopts these Articles of Amendment to its Articles of
Incorporation. |
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ARTICLE
ONE
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The name of the corporation is Environmental Reclamation Company _____________ (Note) |
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ARTICLE
TWO
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The following amendment of the Articles of Incorporation was
adopted on May 22, 1986 in the manner indicated below. (X
one box only.) |
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By a majority of the incorporators provided no directors
were named in the articles of incorporation and no directors have
been elected; or by a majority of the board of directors, in
accordance with Section 10.10, the corporation having issued no
shares as of the time of adoption of this amendment; |
(Note 2) |
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By a majority of the board of directors, In accordance with
Section 10.15, shares having been issued but shareholder action
not being required for the adoption of the amendment; |
(Note 3) |
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By the shareholders, in accordance with Section 10.20, a
resolution of this beard of directors having been duly adopted and
submitted to the shareholders. At a meeting of shareholders, not
less than the minimum number of votes required by statute and by
the articles of incorporation were voted in favor of the
amendment; |
(Note 4) |
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By the shareholders, in accordance with Sections 10.20 and
7.10, a resolution of the board of directors having been duly
adopted and submitted to the shareholders. A consent in writing
has been signed by shareholders having not less than the minimum
number of votes required by statute and by the articles of
incorporation. Shareholders who have not consented in writing have
been given notice in accordance with Section 7.10; |
(Note 4) |
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By the shareholders, in accordance with Sections 10.20 and
7.10, a resolution of the board of directors have been duly
adopted and submitted to the shareholders. A consent in writing
has been signed by all the shareholders entitled to vote on this
amendment. |
(Note 4) |
(INSERT AMENDMENT)
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(Any article being amended is required to be set forth in its entirety.) (Suggested
language for an amendment to change the corporate name is: RESOLVED, that the Articles
of Incorporation be amended to read as follows:) |
RESOLVED, that the Articles of Incorporation be amended to change the
name of the Corporation from Environmental Reclamation Company to C & E Properties, Inc.
(New Name)
All changes other than name, include on page 2
(over)
Page 2
Resolution
FURTHER RESOLVED, that the purposes for which the Corporation is organized are restated
as follows:
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1. |
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To acquire, retain, own, use, convey, lease and otherwise
dispose of and deal in real property and personal property. |
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2. |
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To advise, manage and provide all types of services not
otherwise prohibited under the Illinois Business Corporation
Act. |
Page 3
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ARTICLE
THREE
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The manner, if not set forth in the amendment, in which any exchange, reclassification or
cancellation of issued shares, or a reduction of the number of authorized shares of any class below
the number of issued sham of that class, provided for or effected by this amendment, is as follows:
(If not applicable, insert
No change) |
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NO CHANGE |
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ARTICLE FOUR
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(a) The manner, if not set forth in
the amendment, in which said amendment effects a change
in the amount of paid-in capital* is as follows: (If not
applicable, insert No change) |
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NO CHANGE |
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(b) The amount of paid-in capital* as changed by this amendment is as
follows: (If not applicable, Insert No change) |
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NO CHANGE |
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Before Amendment |
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After Amendment |
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Paid-in Capital |
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$ |
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$ |
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The undersigned corporation has caused this statement to be signed by its duly authorized
officers, each of whom affirm, under penalties of perjury, that the facts stated herein are true.
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Dated May 29, 1986
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ENVIRONMENTAL RECLAMATION COMPANY |
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(Exact Name of Corporation) |
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attested by
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/s/ Edna Ball |
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by |
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/s/ Carl Ball |
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(Signature of Secretary or Assistant Secretary) |
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(Signature of President or Vice President) |
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Secretary
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President |
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(Type or Print Name and Title)
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(Type or Print Name and Title) |
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* |
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Paid-in Capital replaces the terms Stated Capital and Paid-in Surplus and is equal to
the total of these accounts. |
exv3w478
Exhibit 3.478
AMENDED AND RESTATED BYLAWS
OF
ENVIRONMENTAL RECLAMATION COMPANY
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of
Directors. The Corporations Secretary shall act as secretary of each meeting of the stockholders;
in the Secretarys absence, the chairman of the meeting may appoint any person (whether a
stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his
part, and subject to any state law restrictions or requirements, the chairman of a meeting shall,
among other things, have absolute authority to fix the period of time allowed for the registration
of stockholders and the filing of proxies, to determine the order of business to be conducted at
such meeting and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
3
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
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Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
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ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by
the Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and
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executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it
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may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the
9
time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
10
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without
11
the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
12
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
14
exv3w479
Exhibit 3.479
[ILLEGIBLE]
CERTIFICATE OF INCORPORATION
OF
EnvironTech, Inc.
FIRST. The name of the Corporation is EnvironTech, Inc.
SECOND. The address of its registered office in the State of Delaware is 229 South State
Street, in the City of Dover, County of Kent. The name of its registered agent at such address is
United States Corporation Company.
THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall have authority to
issue is one thousand (1,000), all of one class, designated Common Stock, of the par value of one
dollar ($1.00) per share.
FIFTH. The name and mailing address of the incorporator is as follows:
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NAME |
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MAILING ADDRESS |
Terence T. OMeara
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111 West Monroe Street Chicago, Illinois 60603 |
SIXTH. The name and mailing address of the persons who are to serve as directors until
the first annual meeting of the stockholders or until their successors are elected and qualified,
are as follows:
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NAME |
|
MAILING ADDRESS |
Diane M. Root
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109 Sherwood Place Morris, Illinois 60450 |
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Sonya A. Root
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308 56th Street Des Moines, IA 50312 |
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Stephen R. Kent
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7604 E. Plaza Drive Scottsdale, AZ 85253 |
SEVENTH. For the management of the business and for the conduct of the affairs of the
Corporation, and in further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders, it is further provided as follows:
|
7.1. |
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The election of directors need not be by ballot. |
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7.2. |
|
The Board of Directors shall have power to make,
alter or repeal By-Laws of the Corporation in the manner provided
in the By-Laws of the Corporation (subject to the power of
stockholders of the Corporation to amend, alter, or repeal any
By-laws made by the Board of Directors). |
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7.3. |
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Any director or any officer elected or appointed by
the stockholders or by the Board of Directors may be removed at
any time in such manner as shall be provided in the By-Laws. |
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7.4. |
|
No director shall be personally liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director for any act or omission, except
that he may be liable (i) for any breach of the directors duty
of loyalty to the Corporation or its stockholders, (ii) for acts
of omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal
benefit. |
EIGHTH. The Corporation is to have perpetual existence.
NINTH. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
Statute, and all rights conferred herein upon stockholders and directors are granted subject to
this reservation.
-2-
I, the undersigned, being the incorporator hereinbefore named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, do make this
Certificate, hereby declaring and certifying that it is my act and deed and that the facts stated
herein are true, and accordingly I have hereunto set my hand and seal this 19th day of December,
1986.
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/s/ Terence T. OMeara
Terence T. OMeara
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|
-3-
exv3w480
Exhibit 3.480
AMENDED AND RESTATED BYLAWS
OF
ENVIRONTECH, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
outside of the State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the
votes entitled to be cast by the holders of all the then issued and outstanding shares of common
stock of the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to
this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Written notice
may also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal,
Delaware. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock
holders or disinterested directors or pursuant to the direction (howsoever embodied) of any court
of competent jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w481
Exhibit 3.481
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/02/1996
960096382 2609847 |
CERTIFICATE OF FORMATION
OF
ENVOTECH-ILLINOIS L.L.C.
A LIMITED LIABILITY COMPANY
FIRST: The name of the limited liability company is: Envotech-Illinois L.L.C.
SECOND: The address of the limited liability companys registered office in the state of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THE UNDERSIGNED, being the individual forming the limited liability company, has
executed, signed and acknowledged this Certificate of Formation this 2nd day of April, 1996.
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/s/ Blaine A. Lamperski
Blaine A. Lamperski
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exv3w482
Exhibit 3.482
AMENDED AND RESTATED
OPERATING AGREEMENT OF
ENVOTECH-ILLINOIS, L.L.C.
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This Amended and Restated Operating Agreement (the Agreement) is executed as of November 4, 1998,
by Liberty Waste Services of Illinois, L.L.C., an Illinois limited liability company (the Member),
as the sole member of the Company. |
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is Envotech-Illinois,
L.L.C. (the Company). The name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company
is dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall file any amendments to the Certificate
of Formation deemed necessary by it to reflect the provisions of this Agreement or any amendments
to this Agreement adopted by the Member in accordance with the terms hereof. Upon the approval of
the Certificate of Formation, or any amendments thereto, by the Member in accordance with this
Agreement, the Member or a designee of a Member shall be authorized to execute and file such
instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name of the sole Member is set forth in the heading of this
Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member, in its sole discretion, may make loans (Member Loans)
to the Company, which shall bear interest and be repaid on such reasonable terms and conditions as
may be approved by the Member.
2
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
Unless otherwise required by the Code, all Profits, Losses and items thereof for each fiscal
year of the Company shall be allocated to the Member in full, disregarding the Company as a
separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
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SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a
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certificate of cancellation shall be executed and filed by the Member with the Delaware Secretary
of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.5 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Amended and Restated Operating Agreement, as amended from time
to time. Words such as herein, hereinafter, hereof, hereto and hereunder, refer to this
Agreement as a whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.2 hereof.
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Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company governed by this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement, or
any other Person admitted as a Member pursuant to the terms of this Agreement. Member refers
collectively to all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Liberty Waste Services of Illinois, L.L.C.,
an Illinois limited liability company
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By: |
/s/ Donald W. Slager
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Its: |
Executive Vice President
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exv3w483
Exhibit 3.483
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 08/22/1997
971282077 2787433 |
CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation is:
Workman Services, Inc.
SECOND: The address of the corporations registered office in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity
for which corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is 1,000 shares of Common Stock of the par value of
$.01 per share.
FIFTH: The name and mailing address of the incorporator are; Cindy Sabish,
Kirkpatrick & Lockhart LLP, 1500 Oliver Building, Pittsburgh, Pennsylvania 15222.
SIXTH: The corporation is to have perpetual existence.
SEVENTH: In Furtherance and not in limitation of the powers
conferred by statute, the board of directors is expressly authorized to
adopt, amend or repeal the by-laws of the corporation.
EIGHTH: Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws may provide. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not
be by written ballot unless the by-laws of the corporation shall so provide.
NINTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
TENTH: The corporation shall indemnify, to the fullest extent now or
hereafter permitted by law, each director or officer of the corporation who was or
is made a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was an authorized
representative of the corporation, against all expenses (including attorneys fees
and disbursements), judgments, fines (including excise taxes and penalties) and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding.
A director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary duty
as a director, provided however, that this provision shall not eliminate or limit
the liability of a director to the extent that such elimination or limitation of
liability is expressly prohibited by the Delaware General Corporation Law as in
effect at the time of the alleged breach of duty by such director.
Any repeal or modification of this Article by the stockholders of the corporation shall not
adversely affect any right or protection exiting at the time of such repeal or modification to
which any person may be entitled under this Article. The rights conferred by this Article shall not
be exclusive of any other right which the corporation may now or hereafter grant, or any person may
have or hereafter acquire, under any statute, provision of this Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. The
rights conferred by this Article shall continue as to any person who has ceased to be a director or
officer of the corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
For
the purposes of this Article, the term authorized representative shall mean a director,
officer, employee or agent of the corporation or of any subsidiary of the corporation, or a
trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the corporation or by any subsidiary of the corporation, or a person
who it or was serving another corporation, partnership, joint venture, trust or other enterprise in
any of the foregoing capacities at the request of the corporation.
THE UNDERSIGNED, being the incorporator named above, for the purposes of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, does make this certificate,
hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 22nd day of August, 1997.
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/s/ Cindy Sabish
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Cindy Sabish, Incorporator |
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RESERVATION NO. 2787433
- 2 -
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WORKMAN SERVICES, NC.
Workman Services, Inc., (the Corporation), a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY;
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That at a meeting of the Board of Directors of the Corporation resolutions were
duly adopted setting forth a proposed amendment of the Certificate of Incorporation of
the Corporation, declaring said amendment to be advisable and directing that it be
submitted to the stockholders of the Corporation for approval and adoption. The
resolution setting forth the proposed amendment is as follows: |
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RESOLVED, that Article FIRST of the Corporations Certificate of
Incorporation, shall be amended to read in its entirety as follows: |
FIRST: The name of the Corporation is:
Evergreen Scavenger Services, Inc.
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SECOND: |
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That the said amendment has been consented to and authorized by the holders of all
of the issued and outstanding stock entitled to vote by unanimous written consent
given in accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware. |
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THIRD: |
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That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by Jeffrey D.
Kendall, its duty authorized officer on this 1st day of October, 1997.
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WORKMAN SERVICES, INC.
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By: |
/s/ Jeffrey D. Kendall
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President |
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RESERVATION NO. 2801837
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EVERGREEN SCAVENGER SERVICES, INC.
Evergreen Scavenger Services, Inc., (the Corporation), a
corporation organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, DOES HEREBY CERTIFY:
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FIRST: |
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That at a meeting of the Board of Directors of the Corporation resolutions
were duly adopted setting forth a proposed amendment of the Certificate of
Incorporation of the Corporation, declaring said amendment to be advisable and
directing that it be submitted to the stockholders of the Corporation for
approval and adoption, The resolution setting forth the proposed amendment is as
follows: |
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RESOLVED, that Article FIRST of the Corporations Certificate of
Incorporation, shall be amended to read in its entirety as follows: |
FIRST: The name of the Corporation is:
Evergreen Scavenger Service, Inc.
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SECOND: |
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That the said amendment has been consented to
and authorized by the holders of all of the issued and outstanding stock entitled to vote by unanimous
written consent given in accordance with the provisions of Section 228 of
the General Corporation Law of the State of Delaware. |
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THIRD: |
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That said amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by
Jeffrey D. Kendall, its duly authorized officer on this 13th day of October,
1997. |
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EVERGREEN SCAVENGER SERVICES, INC.
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By: |
/s/ Jeffrey D. Kendall
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President |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 10/31/1997
971371534 2787433 |
exv3w484
Exhibit 3.484
AMENDED AND RESTATED BYLAWS
OF
EVERGREEN SCAVENGER SERVICE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be
designated from time to time by the Board of Directors and stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
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officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen
9
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall
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be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE
VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w485
Exhibit 3.485
CERTIFICATE OF FORMATION
OF
EVERGREEN SCAVENGER SERVICE, L.L.C.
A Limited Liability Company
FIRST: The name of the limited liability company is:
Evergreen Scavenger Service, L.L.C.
SECOND: The address of the limited liability companys registered office in the State of
Delaware is 1013 Centre Road, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is Corporation Service Company.
THE UNDERSIGNED, being the individual forming the limited liability company, has executed,
signed and acknowledged this Certificate of Formation this 11th day of July, 1997.
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/s/ Cindy Sabish
Cindy Sabish
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Authorized Person |
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CERTIFICATE OF AMENDMENT
OF
EVERGREEN SCAVENGER SERVICE, L.L.C.
1. |
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The Name of the limited liability company is EVERGREEN SCAVENGER SERVICE, L.L.C. |
2. |
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The Certificate of Formation of the limited liability company is hereby amended as follows: |
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The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company. |
IN WITNESS
WHEREOF, the undersigned has executed this Certificate of Amendment of EVERGREEN SCAVENGER SERVICE,
L.L.C. this 7th day of April, 1999.
exv3w486
Exhibit 3.486
AMENDED AND RESTATED
OPERATING AGREEMENT OF
EVERGREEN SCAVENGER SERVICE, L.L.C.
This Amended and Restated Operating Agreement (the Agreement) is executed as of November 4,
1998, by Liberty Waste Services Limited, L.L.C., a Delaware limited liability company (the
Member), as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant
to the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is Evergreen Scavenger
Service, L.L.C. (the Company). The name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware upon the consent
of the Member. The Company may maintain a registered office in any state within which it does
business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall file any amendments to the
Certificate of Formation deemed necessary by it to reflect the provisions of this Agreement or any
amendments to this Agreement adopted by the Member in accordance with the terms hereof. Upon the
approval of the Certificate of Formation, or any amendments thereto, by the Member in accordance
with this Agreement, the Member or a designee of a Member shall be authorized to execute and file
such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name of the sole Member is set forth in the heading of this
Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member, in its sole discretion, may make loans (Member Loans)
to the Company, which shall bear interest and be repaid on such reasonable terms and conditions as
may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be
distributed to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
Unless otherwise required by the Code, all Profits, Losses and items thereof for each fiscal
year of the Company shall be allocated to the Member in full, disregarding the Company as a
separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.5 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann. Tit.
6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Amended and Restated Operating Agreement, as amended from time to
time. Words such as herein, hereinafter, hereof, hereto and hereunder, refer to this
Agreement as a whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.2 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company governed by this Agreement and any limited
liability company continuing the business of this Company in the event of dissolution as herein
provided.
5
Member means any Person identified as a Member in the heading to this Agreement, or any
other Person admitted as a Member pursuant to the terms of this Agreement. Member refers
collectively to all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits
and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
Liberty Waste Services Limited, L.L.C.,
a
Delaware limited liability company
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By:
Its:
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/s/ Donald W. Slager
President
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exv3w487
Exhibit 3.487
The
Commonwealth of Massarhusetts
KEVIN H. WHITE
Secretary of the Commonwealth
STATE
HOUSE
BOSTON, MASS.
ARTICLES OF ORGANIZATION
(Under G.L. Ch. 156B)
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NAME |
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(including given name in full)
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POST OFFICE ADDRESS |
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We, |
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FREDERICK P. McNAMARA, 15 Bloomfield Street, Springfield, Mass., KATHLEEN McNAMARA,
15 Bloomfield Street, Springfield, Mass., and FRANCIS P. TEHAN, 136 Westmorland Avenue,
Longmeadow, Mass. |
do hereby
associate ourselves as incorporators with the intention of forming a
corporation under the provisions of General Laws, Chapter 156B.
1. The name by which the corporation shall be known is:
F. P. McNAMARA RUBBISH REMOVAL INC.
2. The purposes for which the corporation is formed are as follows: To engage in
the
business of collecting and disposing of rubbish and waste of all kinds from commercial,
industrial and residential properties. To enter into contracts and agreements relating to the
collection of rubbish and waste. To acquire, buy, purchase, lease or otherwise real properties of
all kinds, rights and interests therein. To build, as necessary, any structures employed in the
collection and disposal of rubbish and waste. To acquire any and all equipment necessary to the
collection and disposal of waste and rubbish. To acquire by sale or otherwise any business of a
similar nature and generally to do all the things ordinarily done by those engaged in this line of
business.
NOTE: If provisions for which the space provided-under Articles 2, 4, 5 and 6 is not
sufficient additions should be set out on continuation sheets to be numbered 2A, 2B, etc.
Indicate under each Article where the provision is set out. Continuation sheets shall be
on 81/2 x 11 paper and must have a left-hand margin 1 inch wide for binding. Only one
side should be used.
3. |
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The total number of shares and the par value, if any, of each
class of stock which the
corporation is authorized to issue is as follows: |
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WITH PAR VALUE |
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WITHOUT PAR VALUE |
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PAR |
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CLASS OF STOCK |
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NUMBER OF SHARES |
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NUMBER OF SHARES |
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VALUE |
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Preferred |
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Common |
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1,000 |
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4. |
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If more than one class is authorized, a description of each of the different classes of
stock with, if any, the preferences, voting powers, qualifications, special or relative
rights or privileges as to each class thereof and any series now established: |
None
5. |
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The restrictions, if any, imposed by the Articles of Organization upon the transfer of
shares of stock of any class are as follows: |
See Sheet 5A
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Other lawful provisions, if any, for the conduct and
regulation of the business and affairs
of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating
the powers of the corporation, or of its directors, or stockholders, or of any class of
stockholders: |
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The incorporators or directors of this corporation need not be stockholders in the
Corporation. |
If there are no provisions state None.
Any stockholder, including the heirs, assigns, executors or administrators of a
deceased stockholder, desiring to sell or transfer such stock owned by him or them, shall first
offer it to the corporation through the Board of Directors, in the manner following:
He shall notify the directors of his desire to sell or transfer by notice in writing, which
notice shall contain the price at which he is willing to sell or transfer and the name of one
arbitrator. The directors shall within thirty days thereafter either accept the offer, or by notice
to him in writing, name a second arbitrator, and these two shall name a third. It shall then be
the duty of the arbitrators to ascertain the value of the stock, and if any arbitrator shall
neglect or refuse to appear at any meeting appointed by the arbitrators, a majority may act in the
absence of such arbitrator.
After the acceptance of the offer, or the report of the arbitrators as to the value of
the stock, the directors shall have thirty days within which to purchase the same at such
valuation, but if at the expiration of thirty days, the corporation shall not have exercised
the right so to purchase, the owner of the stock shall be at liberty to dispose of the same in
any manner he may see fit.
No shares of stock shall be sold or transferred on the books of the corporation until these
provisions have been complied with, but the Board of Directors may in any particular instance waive
the requirement.
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The first meeting of the incorporators was duly held on the 23rd day of
November 1966 at which by-laws of the corporation were duly adopted and at which
the initial directors, president, treasurer and clerk, whose names are set out below, were
duly elected. |
8. |
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The following information shall not for any purpose be treated as a permanent part of the
Articles of Organization of the corporation. |
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The post office address of the initial principal office of the corporation in Massachusetts
is: 15 Bloomfield Street, Springfield, Mass. |
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b. |
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The name, residence, and post office address of each of the initial directors and
following officers of the corporation elected at the first meeting are as follows: |
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NAME |
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RESIDENCE |
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POST OFFICE ADDRESS |
President:
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FREDERICK P. McNAMARA
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15 Bloomfield Street
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15 Bloomfield St. |
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Springfield, Mass.
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Springfield, Mass. |
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Treasurer:
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FREDERICK P. McNAMARA
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15 Bloomfield Street
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15 Bloomfield St. |
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Springfield, Mass.
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Springfield, Mass. |
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Clerk:
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KATHLEEN McNAMARA
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15 Bloomfield Street
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15 Bloomfield Street |
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Springfield, Mass.
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Springfield, Mass. |
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Directors:
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FREDERICK P. McNAMARA
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15 Bloomfield Street
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15 Bloomfield Street |
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Springfield, Mass.
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Springfield, Mass. |
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KATHLEEN McNAMARA
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15 Bloomfield Street
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15 Bloomfield Street |
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Springfield, Mass.
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Springfield, Mass. |
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FRANCIS P. TEHAN
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136 Westmoreland St.
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136 Westmoreland St. |
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Longmeadow, Mass.
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Longmeadow, Mass. |
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c. |
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The date initially adopted on which the corporations
fiscal year ends is: December 31 |
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d. |
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The date initially fixed in the by-laws for the annual meeting of stockholders of the
corporation is: [ILLEGIBLE] 4th Wednesday of January |
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e. |
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The name and business address of the registered agent, if
any, of the corporation are: None
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IN WITNESS WHEREOF, and under the penalties of perjury, we, the above-named
INCORPORATORS, hereto sign our names, this 22nd day of December 1966.
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/s/ Frederick P. McNamara
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/s/ Kathleen McNamara
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/s/ Francis P. Tehan
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exv3w488
Exhibit 3.488
AMENDED AND RESTATED BYLAWS
OF
F. P. MC NAMARA RUBBISH REMOVAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which
2
place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
4
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
5
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
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request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
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limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
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Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w489
Exhibit 3.489
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CERTIFIED TO BE A TRUE AND CORRECT
COPY [ILLEGIBLE] TAKEN FROM AND COMPARED WITH THE
ORIGINAL ON FILE IN THIS OFFICE
DEC 15 2000
/s/
[ILLEGIBLE]
SECRETARY OF STATE OF SOUTH CAROLINA |
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Jim Miles SECRETARY OF STATE
FILED
DEC 15 2000
AM PM
7 8 9 1 0 1 1 1 2 1 2 3 4 5 6 |
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF ORGANIZATION
LIMITED LIABILITY COMPANY
TYPE OR PRINT CLEARLY IN BLACK INK
The
undersigned deliver the following articles of organization to form a South Carolina
limited liability company pursuant to Sections 33-44-202 and 33-44-203 of the 1976 South Carolina
Code of Laws, as amended.
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The name of the limited liability company which complies with Section 33-44-105 of the South
Carolina Code of 1976, as amended is Flint Hill Road, LLC |
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The address of the
initial designated office of the Limited Liability Company in South
Carolina is |
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c/o C T CORPORATION
SYSTEM, 75 Beattie Place, Two Insignia Financial Plaza |
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Street Address
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Greenville
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29601
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The initial agent for service of process of the Limited Liability Company is |
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C T CORPORATION SYSTEM |
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Name
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and the street address in South Carolina for this initial agent for service of process is |
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c/o C T CORPORATION
SYSTEM, 75 Beattie Place, Two Insignia Financial Plaza |
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Greenville
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29601 |
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The name and address of each organizer is: |
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Allied Waste North America, Inc. |
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15880 N. Greenway-Hayden Loop, Suite 100
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Scottsdale |
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Arizona
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85260 |
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(Add additional lines if necessary) |
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Flint Hill Road, LLC |
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Name of Limited Liability Company
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Check this box only if the company is to be term company. If so, provide the term specified: |
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Check this box only if management of the limited liability company is vested in a manager
or managers. If this company is to be managed by managers, specify the name
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(Add additional lines if necessary) |
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Flint Hill Road, LLC |
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Name of Limited Liability Company
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7.
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þ
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Check this box only if one or more of the members of the company are to be liable for its
debts and obligations under section 33-44-303(c). If one or more members are so
liable, specify which members, and for which debts, obligations or liabilities such
members are liable in their capacity as members.
Allied Waste North America, Inc.
- - Sole Member (100% liable) |
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8. |
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Unless a delayed effective date is specified, these articles will be effective when
endorsed for filing by the Secretary of State. Specify any delayed effective date and
time: |
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9. |
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Set forth any other provisions not inconsistent with law which the organizers determine to
include, including any provisions that are required or are permitted to be set forth in the
limited liability company operating agreement. |
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Signature of each organizer |
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/s/ Jo Lynn White
Jo Lynn White, Assistant Secretary
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of Allied Waste, North America,
Inc., Sole Member
(Add Additional lines if necessary)
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Date
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December 13, 2000
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FILING INSTRUCTIONS
1. |
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File two copies of this form, the original and either a duplicate original or a conformed copy. |
2. |
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If space on this form is not sufficient, please attach additional sheets containing a
reference to the appropriate paragraph in this form, or prepare this using a computer disk
which will allow for expansion of the space on the form. |
3. |
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This form must be accompanied by the filing fee of $110.00 payable to the Secretary of State. |
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Return to: |
Secretary of State
P.O. Box 11350
Columbia, SC 29211 |
4. |
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The first annual report for a Limited Liability Company must be delivered to the Secretary of
State between January first ant April first of the calendar year after which the Limited
Liability Company was organized or the foreign company was first authorized to transact
business in South Carolina. Subsequent annual reports must be delivered to the Secretary of
State between January first and April first of the ensuing calendar years. |
exv3w490
Exhibit 3.490
OPERATING AGREEMENT
OF FLINT HILL ROAD, LLC
This Operating Agreement (the Agreement) of FLINT HILL ROAD, LLC (the Company) is
executed as of December 15, 2000, by ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is Flint Hill Road, LLC. All business of the Company
shall be conducted in the Company name. The Company shall hold its property in the name of the
Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning undeveloped property, and to engage in any other activity permitted under South
Carolina law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of South Carolina
shall be c/o CT Corporation System, 75 Beattie Place, Two Insignia Financial Plaza, Greenville,
South Carolina 29601, County of Greenville. The registered office may be changed to any other place
within the State of South Carolina upon the consent of the Member. The Company may maintain a
registered office in any state within which it does business at any location approved by the
Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in South Carolina are CT Corporation System, 75
Beattie Place, Two Insignia Financial Plaza, Greenville, South Carolina 29601, County of
Greenville. The Companys agent for service of legal process may be changed upon the consent of the
Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles of
Organization deemed necessary by it to reflect amendments to this Agreement adopted by the Member
in accordance with the terms hereof. Upon the approval of any amendments thereto, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit A
to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. The Member shall not be obligated to
make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically to
the Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions
of the Member are carried into effect. The President shall execute all bonds, mortgages, contracts
and other instruments of the Company, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Company may sign and execute
documents when so authorized by this Agreement, the Member, or the President. The President shall
also perform such other duties and may exercise such other powers as from time to time may be
assigned to him by this Agreement or by the Member.
2
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents if there are
more than one shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
3
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The election by the Member to dissolve the Company
(c) Upon the occurrence of any of the events described in § 33-44-801 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of termination has been filed with
the South Carolina Secretary of State or until a decree dissolving the Company have been entered by
a court of competent jurisdiction.
4
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Articles of Termination. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, articles of
termination shall be executed and filed by the Member with the South Carolina Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every
covenant, term and provision of this Agreement shall be binding upon and inure to the benefit of
the Member and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of South Carolina shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the South Carolina Uniform Limited Liability Company Act of 1996, as set forth in
the Code of Laws of South Carolina, 1976, Chapter 44, et seq., as amended from time to time (or
any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
5
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Articles of Organization has the meaning given that term in Section 1.7
hereof.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company, trust, or
other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party hereto, and no such other Person shall
have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation,
its Sole Member
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By: |
/s/ Donald W. Slager
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Name: |
Donald W. Slager |
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Title: |
President |
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6
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
Allied Waste North
America, Inc. 15880 North
Greenway Hayden Loop Suite
100
Scottsdale, Arizona 85260
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$ |
100.00 |
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100 |
% |
7
exv3w491
Exhibit 3.491
FILED
JAN 16 1986
Administrator
MICHIGAN DEPARTMENT OF COMMERCE
Corporation & Securities Bureau
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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Date Received |
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JAN 14 1986 |
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EFFECTIVE DATE:
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CORPORATION IDENTIFICATION NUMBER
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3 |
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0 |
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3 |
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ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned
corporation executes the following Articles:
Article I
The name of the corporation is:
KCL & K M, Inc.
Article II
The purpose or purposes for which the corporation is organized is to engage in any activity within
the purposes for which corporations may be organized under the Business Corporation Act of
Michigan.
Article III
The total authorized capital stock is:
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1.
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Common Shares
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50,000
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Par Value Per Share
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$ |
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1.00
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Preferred Shares
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Par Value Per Share
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$ |
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and/or shares without par value as follows:
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2.
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Common Shares
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Stated Value Per Share
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$ |
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Preferred Shares
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Stated Value Per Share
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$ |
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A statement of all or any of the relative rights, preferences and limitations of the shares of each
class is as follows:
Article IV
1. The address of the registered office is:
c/o Kinney, Cook, Lindenfeld & Kelley
811 Ship
Street, St. Joesph, |
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Michigan |
49085 |
(Street Address)
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(City)
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(Zip Code) |
2. The mailing address of the registered office if different than above:
c/o Kinney, Cook, Lindenfeld & Kelley
P.O.
Box. 24, St. Joseph, |
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Michigan |
49085 |
(P.O.
Box)
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(City)
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(Zip Code) |
3. The name of the resident agent at the registered office is: Paul J. Kelley
Article V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
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Name
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Residence or Business Address |
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811 Ship Street |
Paul J. Kelley, P.O. Box 24, St. Joseph, Michigan 49085
FILED
SEP 3-1986
Administrator
MICHIGAN DEPARTMENT OF COMMERCE
Corporation & Securities Bureau
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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(FOR BUREAU USE ONLY)
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Date Received |
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AUG 25 1986 |
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CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Corporations
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended (profit corporations),
or Act 162, Public Acts of 1982 (nonprofit corporations), the
undersigned corporation executes the
following Certificate:
1. The present name of the corporation is:
KCL & K M, INC.
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2. The corporation identification number
(CID) assigned by the Bureau is:
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3 |
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3. The location of its registered office is:
c/o Kinney, Cook, Lindenfeld & Kelley
811
Ship Street, St. Joseph |
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Michigan |
49085 |
(Street
Address)
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(City)
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(Zip Code) |
4. Article I of the Articles of Incorporation is hereby amended to read as follows:
ARTICLE I
The name of the corporation is:
FLL, Inc.
ARTICLE IV
1. The address of the registered office is:
16139
Red Arrow Highway, Union Pier, Michigan 49129
2. The name of the resident agent at the registered office is:
Paul D. Oselka
exv3w492
Exhibit 3.492
AMENDED AND RESTATED BYLAWS
OF
FLL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of
directors to be determined from time to time by resolution adopted by the affirmative vote
of a majority of the directors then in office. A director shall hold office until the next Annual
Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as may be determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
5
or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee, in good faith, authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or
9
destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be
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deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w493
Exhibit 3.493
CERTIFICATE OF FORMATION
FOREST VIEW LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Forest View Landfill, LLC.
2. Registered Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 5th day of October, 1999.
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Allied Waste North America,
Inc., a Delaware corporation,
Sole Member
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By: |
/s/ D. W. Slager
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D. W. Slager, Vice President, Operations |
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exv3w494
Exhibit 3.494
OPERATING AGREEMENT
OF FOREST VIEW LANDFILL, LLC
This Operating Agreement (the Agreement) of Forest View Landfill, LLC (the Company) is
executed as of October 5, 1999, by Allied Waste North America, Inc., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is Forest View Landfill, LLC. All business of the
Company shall be conducted in the Company name. The Company shall hold its property in the name of
the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills and providing waste transportation services, and to
engage in any other activity permitted under Delaware law and the laws of any jurisdiction in
which the Company may do business.
1.5 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for
service of legal process may be changed upon the consent of the Member.
1.7 Certificate of Formation. The Member shall file any amendments to the Certificate
of Formation deemed necessary by them to reflect amendments to this Agreement adopted by the
Member in accordance with the terms hereof. Upon the approval of any amendments thereto, by the
Member in accordance with this Agreement, the Member or a designee of the Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are: Allied Waste North America,
Inc., a Delaware corporation, 15880 N. Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement, which is incorporated herein by
this reference. The Member shall not be obligated to make additional Capital Contributions to the
Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be determined by
the Member. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically and to
the Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the
consent or approval of the Member under this Agreement, shall be made within the sole discretion
of the Member. Any party dealing with the Company shall be permitted to rely absolutely on the
signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them herein or in resolutions duly adopted by the Member
on behalf of the Company. The officers of the Company may include a president, vice presidents, an
executive vice president, a secretary, a treasurer, and such other officers as the Member deems
appropriate. The officers of the Company will be entitled to such compensation for their services
as the Member may reasonably determine from time to time. Unless otherwise specified by the
Member, the following officers shall have the authority to engage in the activities set forth with
respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
2
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him
by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Executive Vice President, if there is one acting, or
in the absence of an Executive Vice President, the Vice President or the Vice Presidents if there
are more than one, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and
to the credit of the Company in such depositories as may be designated by the Member. The
Treasurer shall disburse the funds of the Company as may be ordered by the Member, taking proper
vouchers for such disbursements, and shall render to the President, from time to time, when the
Member so requires, an account of all his transactions as Treasurer and of the financial condition
of the Company. If required by the Member, the Treasurer shall give the Company a bond in such sum
and with such surety or sureties as shall be satisfactory to the Member for the faithful
performance of the duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
3
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a
bond in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case
of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following events:
(a) The sale of all or substantially all of the Companys assets and the collection
4
of the proceeds of such sale;
(b) The election by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under § 18-802 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of dissolution have been filed with
the Delaware Secretary of State or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, articles of
dissolution shall be executed and filed by the Member with the Delaware Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
5
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any
corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Articles of Organization has the meaning given that term in Section 1.7 hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
6
7.7 No Third-Party Beneficiaries. No term or provision of this Operating
Agreement is intended to or shall be for the benefit of any Person not a party hereto, and no such
other Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ Steven M. Helm
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Steven M. Helm, Vice President - Legal |
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7
EXHIBIT A
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Name and Address of |
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Initial Capital |
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Percentage |
Member |
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Contribution |
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Interest |
Allied Waste North America, Inc.
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$ |
100.00 |
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100 |
% |
15880 North Greenway |
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Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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8
exv3w495
Exhibit 3.495
CERTIFICATE OF LIMITED PARTNERSHIP
OF
FORT WORTH LANDFILL TX, L P
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The name of the limited partnership is Forth Worth Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Fort Worth Landfill TX, LP as of December 8, 1997. |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation, General
Partner
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By: |
/s/ D.W. Slager
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D.W. Slager, President |
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exv3w496
Exhibit 3.496
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
FORT WORTH LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Fort Worth Landfill TX, LP (the
First Amendment) is entered into effective as of November 20, 1998 by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Fort Worth Landfill TX, LP (the Limited Partnership) was formed as a Delaware
limited partnership pursuant to that certain Certificate of Limited Partnership filed with
the
Delaware Secretary of State on December 11, 1997, and the related Agreement of Limited
Partnership of Fort Worth Landfill TX, LP, dated as of December 11, 1997 (the Agreement)
between AWLH and Laidlaw Waste Systems (Fort Worth) Inc., a Delaware corporation (Laidlaw
Fort Worth). Unless specifically defined herein, capitalized terms appearing in this First
Amendment shall have the meanings given those terms in the Agreement.
B. Pursuant to an intra-company transfer, Laidlaw Fort Worth transferred its interest in
the Partnership to AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited
partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of Laidlaw Fort Worths interest in the
Partnership to AWSH and (b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of Laidlaw Fort Worths
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound
by the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all
terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc., a
Delaware corporation
General Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc., a
Delaware corporation
Limited Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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-2-
EXHIBIT A
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Percentage |
Names
and Addresses of Partners |
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Interest |
Allied Waste Systems Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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99 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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1 |
% |
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TOTAL |
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100 |
% |
-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
FORT WORTH LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 11, 1997, by and between
Allied Waste Landfill Holdings, Inc., a Delaware corporation, as the General Partner, and Laidlaw
Waste Systems (Fort Worth) Inc., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Fort Worth Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited
Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon the
unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or
to exercise any rights of a Partner under this Agreement or the Act; and
2
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests at
such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c) or Treasury Regulations promulgated thereunder, all Profits, Losses and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion
to their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers which may be possessed by general partners under the Act. If two or more Persons are
serving as General Partners, decisions regarding the management of the Partnership and its
business and affairs shall be made by the consent of a majority in number of the General Partners
then serving. The rights and powers which the General Partner may exercise include, but are not
limited to, the following:
(a) invest
and reinvest Partnership funds for the purposes set forth in
Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
3
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or
renewals of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts which constitute a condition precedent
to acts by the General Partner or which are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons
as officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf
of the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the General Partner deems appropriate.
The
4
officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets which does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature which do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer which does
not comply with the provisions of this Section 8 shall be void and shall not cause or constitute a
dissolution of the Partnership.
5
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions
of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited
Partner in
the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. In the event any
Person ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining
General Partners, if any, shall have the right and the power to continue the Partnership and its
business without dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has
no General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership
and its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
6
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and
its business without dissolution pursuant to Section 9.2 hereof in the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships
liabilities and Partnership property, and the Partnership property shall be liquidated as
promptly
as is consistent with obtaining the fair value thereof. During the period of liquidation, the
business and affairs of the Partnership shall continue to be governed by the provisions of
this
Agreement. The proceeds from liquidation of the Partnerships property, to the extent
sufficient
therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities
(other than those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the
Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the
Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered
7
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership, to the Partnership at the address set forth in Section 1.6 hereof, or to such other
address as the Partnership may from time to time specify by notice to the Partners in accordance
with this Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section 11.1
Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer not
otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners interest
any rights not specifically granted under this Agreement, or (c) to supersede or modify in any
manner any provision of Section 8 hereof.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5
Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
8
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions which the General Partner may take and all determinations which the General Partner
may make pursuant to this Agreement may be taken and made at the sole and absolute discretion of
the General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not
ceased to be a General Partner pursuant to the terms of this Agreement. General Partners means
all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
9
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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By:
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/s/ James Eng |
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Its:
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Vice President
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Laidlaw Waste Systems (Fort Worth) Inc., |
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a Delaware corporation |
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By:
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/s/ G. Thomas Rochford |
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Its:
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Treasurer
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10
EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners: |
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Contribution |
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Interest |
General Partner:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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$ |
10.00 |
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1 |
% |
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Limited Partner:
Laidlaw Waste Systems (Fort Worth) Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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$ |
990.00 |
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99 |
% |
11
exv3w497
Exhibit 3.497
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FILED |
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[ILLEGIBLE]
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By: |
/s/
[ILLEGIBLE]
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Depty |
ARTICLES
OF INCORPORATION
OF
FORWARD, INC.
ONE:
The name of this corporation iS, Forward, Inc..
TWO: The purposes for which this
corporation is formed arc: (a) To engage initially in the primary business of operating a refuse
and garbage transfer station; to furnish facilities for the collection and transfer of garbage,
waste, swill, industrial waste, commercial garbage, food processing waste and non-putrescible
materials from a refuse transfer station to a garbage dump site.
(b) To
engage in any one or more other businesses or transactions which the Board of
Directors of this corporation may from time to tine authorize or approve, whether related or
unrelated to the business described in (a) above or to any other business then or theretofore done
by this corporation.
(c) To exercise any and all rights and powers which a corporation may now or hereafter
exercise.
(d) To
act as principal, agent, joint venturer, partner or in any other capacity which may be
authorized or approved by the Board of Directors
of this corporation.
(e) To purchase, acquire, own, hold, lease, either as lessor or lessee, to pledge,
mortgage, deed in trust, or otherwise encumber, to sell, exchange, or otherwise dispose of, to
invest in, to improve, repair, alter, operate, and deal in and with, real and personal property of
every sort, nature, and description and any and all interest therein.
(f) To acquire by purchase, lease, or otherwise, the business, goodwill, rights, assets, and
property of any person, firm, association, or corporation, either with or without assuming the
whole or any portion of the liabilities of said person, firm, association, or corporation, and to
pay for the same in cash, in the stock or bonds of this corporation, or otherwise; to hold or to
sell or otherwise dispose of all or any portion of the property so
-1-
so acquired; to operate or conduct in any lawful manner the whole or any portion of any
business so acquired, and to have and to exercise such powers as may be necessary or convenient in,
to or connected with, the management and operation of said business.
(g) To borrow money and issue bonds, debentures, notes, and evidences of indebtedness,
and to secure the payment or performance of its obligations by pledge, mortgage, deed of
trust, or otherwise.
(h) To acquire, subscribe for, hold, own, pledge, and otherwise dispose of, and represent
shares of stock, bonds, and securities of any other corporation, domestic or otherwise.
(i) To purchase or otherwise acquire its own bonds, debentures, or other evidences of
its indebtedness or obligations, and, subject to the provisions of Division I of the Corporations
Code, to purchase or otherwise acquire its own shares.
(j) To engage in any business whatsoever which this corporation may deem convenient or proper
in furtherance of any of the objects mentioned in this Article Two or otherwise, to the same extent
and to the same effect as in the case of an individual; to qualify and to do business in any other
state, territory, dependency, or foreign country, and to conduct business within or
without the State of California.
(k) To
supervise and manage all classes of properties, income bearing or otherwise, for other
persons, corporations, and associations; to act as agent, broker or attorney in fact, on a
commission basis or otherwise, for any person, corporation, or association; to negotiate sales,
leases, mortgages, deeds of trust, and other encumbrances of property of other persons,
corporations, associations, real, personal, and mixed wherever situated.
(l) To adopt, apply for, obtain, register, purchase, lease, or otherwise acquire, and to
maintain, protect, hold, use, own, exercise, develop, operate, and introduce, and to
sell, account licences or other rights in respect of, assign, or otherwise dispose of or
turn to account any trade- marks, trade names, patents, patent rights, copyrights and
distinctive marks and rights analogous thereto, and inventions, improvements, processes,
formulas,
-2-
and the like, including such thereof as may be covered by, used in connection with, or secured
or received under, letters patent of the United States of America or elsewhere, or otherwise, and
to acquire, use, exercise, or otherwise turn to account licenses or other rights in respect of any
such trade names, trade marks, patents, patent rights, copyrights,
inventions, improvements,
processes, formulas, and the like.
(m) To act. as financial, commercial, or general agent of individuals, partnerships, trustees,
associations, joint stock companies, corporations, or syndicates, and as such to develop and extend
their business and to aid in any of their lawful enterprises insofar
as a corporation organized
under the laws of the State of California may lawfully do so.
(n) To adopt, and transact its business or any part thereof under a fictitious trade name, and
to adopt such trade name for any branch of it business.
(o) To enter into any kind of contract or agreement, cooperative, or profit-sharing plan with
its officers or employees that the corporation may deem advantageous or expedient or otherwise to
reward or pay such persons for their services as the Directors may deem fit.
(p) To act as a real estate agent or broker and to engage in a general
real estate business.
(q) The business or purpose of this corporation is, from time to time and at any time, to
do one or more of the acts and things herein set forth, and to have all the powers, rights and
privileges now or hereafter conferred by the laws of the State of California authorising the
formation of corporations, provided, however, that nothing herein contained shall be deemed to
authorize this corporation to carry on within this State any public utility business.
(r) The
objects specified herein shall, except as otherwise expressed, be in no way limited or restricted
by reference to or inference from the terns of any other clause or
paragraph of these Articles. The
objects, purposes, and powers specified in each of the clauses or paragraphs in these Articles
shall be regarded as independent objects, purposes, or powers.
The foregoing shall be construed as
objects and powers, and the
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enumerations thereof shall not be hold to limit or restrict in any manner the
general power new or hereafter conferred on this corporation by the laws of
the State of California.
THREE: The county in the State of California where the principal office for the transaction
of the business of this corporation is to be located is San Joaquin County.
FOUR: This corporation is authorized to issue only one class of shares of stock; the total
number of shares shall be Seven hundred Fifty (750); the aggregate par value of all of said shares
shall be Seventy-Five Thousand ($75,000.00) Dollars; and cash par value of each of said shares
shall be One Hundred ($100.00) Dollars.
FIVE; So distinction shall exist between the shares of this corporation or the
holders thereof.
SIX: (a) The number of the directors of this corporation shall be Four (A).
(b) The
names and addresses of the persons who are appointed to act as the first
directors of this corporation are:
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NAME |
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ADDRESS |
Frank J. Garavano
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250 West Jackson Street Stockton , California |
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Irene E. Garavano
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250 West Jackson Street Stockton, California |
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John L. Glambastianl
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1155 West Mariposa Street Stockton, California |
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Lois Glambastiani
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1155 West Mariposa Street Stockton, California |
SEVEN: Before there can be a valid sale or transfer of any of the
shares of this corporation by the holders thereof, the holder of the shares to I be sold or
transferred shall first give notice in writing to the secretary of
this corporation of his
intention to sell or transfer sucn shares. Said notice shall specify
the number of shares to be sold
or transferred, the price per share and the terms upon which such holder intends to make such sale
or transfer. The secretary shall, within five (5) days thereafter, mail or deliver a copy of said
notice to each of the other shareholders of record of this
corporation.
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Such
notice may be delivered to such shareholders personally or may be mailed to the last known
addresses of such shareholders, as the same may appear on the books of this corporation. Within
fifteen days after the mailing or delivering of said notices to such shareholders, any such
shareholder or shareholders desiring to acquire any part or all of the shares referred to in said
notice shall deliver by mail or otherwise to the secretary of this corporation. written offer or
offers to purchase a specified number or numbers of such shares at the price and upon the terms
stated in said notice.
If
the total number of shares specified in such offers exceeds the number of shares referred
to in said notice, each offering shareholder shall be entitled to
purchase such proportion of the
shares referred to in said notice to the secretary, as the number of shares of this corporation,
which he holes, bears to the total number of shares held by all such shareholders desiring to
purchase the shares referred to in said notice to the secretary.
If
all of the shares referred to in said notice to the secretary are not disposed of under
such apportionsent, each shareholder desiring to purchase shares in a number in excess of his
proportionate share, as provided above, shall be entitled to purchase
such proportion of those
shares which thus undisposed of, as the total number of shares which he holds bears to the
total number of shares held by all of the shareholders desiring to purchase shares in excess of
those to which they are entitled under such apportionment.
If none or only a part of the shares referred to in said notice to the secretary is purchased,
as aforesaid, in accordance with offers made within said fifteen day period, the shareholders
desiring to sell or transfer may dispose of all shares of stock referred to in said notice to the
secretary not so purchased by the other share-holders, to any person
or persons, he may so desire;
provided, however, that ha shall not sell or transfer such shares at
lower price or on terms sore
favorable to the purchaser or transferee than those specified in said notice to the secretary.
Any sale or transfer, or purported sale or transfer, of the shares of said corporation
stall be null and void unless the terms, conditions and provisions of this Article SEVEN are
strictly observed and followed.
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EIGHT:
This corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by
Statute, and all rights conferred open shareholders herein are granted subject to this
reservation.
IN WITNESS THEREOF, for the purpose of forming this corporation under
the laws of the State of California, we the undersigned, constituting the in corporators of
this corporation, including the persons named hereinabove as the
first directors of this corporation, have executed these Articles of
Incorporation this 5th day of October, 1961.
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250 West Jackson Street |
Frank J. Garavano
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Stockton, California |
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250 West Jackson Street |
Irene B. Garavano
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Stockton, California |
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1155 West Mariposa Street |
John L. Giambastiani
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Stockton, California |
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1155 West Mariposa Street |
Lois Giambastiani
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Stockton, California |
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STATE OF CALIFORNIA
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SS. |
COUNTY OF SAN JOAQUIN
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On
this 5th day of October, 1961, before me
IRVING M. CORREN, a Notary Public in and for the said County and State residing therein, duly
commissioned and sworn, personally appeared FRANK J. GARAVANO, IRENE B. GARAVANO, JOHN L.
GIAMBASTIANI and LOIS GIAMBASTIANI, known to me, to be the persons whose names are subscribed to
the foregoing Articles of
Incorporation, and acknowledged to me that they executed the same.
We
WITNESS
my hand and official seal.
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/s/ Irving M. Corren |
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Notary Public in and for the County of
San Joaquin, State of California
My Commission Expires Jan. 14, 1963 |
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exv3w498
Exhibit 3.498
AMENDED AND RESTATED BYLAWS
OF
FORWARD, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined
to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an
increase in the number of directors may be filled by a majority of the Board of Directors
then in
3
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
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Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
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ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders
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and resolutions of the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President
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and the Board of Directors, at its regular meetings, or, from time to time, when the Board of
Directors so requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or
affixed or reproduced or otherwise.
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Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
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Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid
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by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses.The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to by
the Board of Directors of the Corporation.
Section 11.
Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
14
exv3w499
Exhibit 3.499
FORM E C A-47
BEFORE ATTEMPTING TO EXECUTE THESE BLANKS BE SURE TO READ CAREFULLY
THE INSTRUCTIONS ON THE BACK THEREOF.
(THESE ARTICLES MUST BE FILED IN DUPLICATE)
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STATE OF ILLINOIS, |
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TO ALAN J. DIXON, Secretary of State
The undersigned,
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(Do note write in this space) |
Date Paid |
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5-10-79 |
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Initial License Fee |
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Franchise Tax |
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Fred Barbara
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446 W. 29th St.
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Chicago,
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being one or more natural persons of the age of twenty-one years or more or a corporation, and
having subscribed to shares of the corporation to be organized pursuant hereto, for the purpose of
forming a corporation under The Business Corporation Act of the State of Illinois, do hereby
adopt the following Articles of Incorporation:
ARTICLE ONE
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The name of the corporation hereby incorporated is:
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Fred Barbara Trucking Co., Inc. |
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ARTICLE TWO
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The address of its initial registered office in the State of Illinois is:
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7610 W. North Avenue |
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Street, in the
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of Elmwood Pk.,
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(60635)
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County of
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Cook
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and |
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the name of its initial Registered Agent at said address is:
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Anthony F. Spina |
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ARTICLE THREE
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The duration of the corporation is:
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perpetual |
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ARTICLE FOUR
The purpose or purposes for which the corporation is organized are:
(As per attached)
ARTICLE FIVE
PARAGRAPH 1: The aggregate number of shares which the corporation is authorized to issue is
100,000, divided into one classes. The designation of each class, the number of
shares of each class, and the par value, if any, of the shares of each class, or a statement that
the shares of any class are without par value, are as follows:
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100,000 |
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PARAGRAPH 2: The preferences, qualifications, limitations, restrictions and the special or relative
rights in respect of the shares of each class are:
none
The purpose or purposes for which the corporation is organized are:
To own, operate, and maintain and to construct, acquire by purchase, lease, or otherwise railroads,
railways, truck lines, bus lines, pipe lines, shipping lines, and airlines, and any other means of
transportation now or hereafter in use for the transportation of passengers, freight, mail,
express, baggage, goods, wares, merchandise, and other property of every kind and nature, and to
conduct, engage in, and carry on the business of transportation of property of every class and
description and of persons and by any means of transportation now or hereafter in use; and to own,
operate, maintain, hold and use, purchase, construct, establish, lease or otherwise acquire,
mortgage, create security interests in, and sell, or otherwise dispose of or deal with terminal
properties and depots, freight and passenger station houses, storage facilities, machine and repair
shops, freight, stock and repair yards, facilities of communication by telegraph, telephone, radio,
television, or otherwise, power plants and power houses, grain and other elevators, wharves,
docks, airports, laboratories, cares, locomotives, rolling stock motors, buses, trucks,
automobiles, ships and vessels, aircraft, and all structures, tools, machinery, appliances, and
appurtenances and any and all other property, real, personal, or mixed, and wheresoever situated,
whether or not similar to any property above described, which may be necessary or useful in
connection with the business of the Corporation.
To manufacture, assemblt, repair, wreck, demolish, purchase, exhibit, demonstrate, sell, let, and
deal in automobiles, motor trucks, trailers, motor cycles, motor boats, aircraft, and all kinds of
vehicles, machines, and contrivances for the transfer, carriage, or transportation of goods,
passengers, or mails, whether propelled by gas, electricity, steam, or other power; motors,
engines, chassis, bodies, tires, lighting and starting systems, and all parts, accessories, and
supplies for motor vehicles, boats, and aircraft of all kinds.
To engage in the business of a gasoline service station. To import, buy, or otherwise acquire,
own, hold, use, export, sell, or otherwise dispose of, gasoline, kerosene, lubricating oils and
greases, antifreezes, tires, batteris, and all other supplies and accessories necessary or
convenient for servicing automobiles and other vehicles and automotive equpment, and generally to
do all things customarily done by gasoline service stations, including, without limitation,
servicing, repairing, lubricating, washing, waxing, and polishing automobiles and other vehicles.
To design, manufacture, buy and sell, and import and export supplies and accessories for
automobiles, automobile trucks, and tractors of every make; to reapir, reconstruct, and overhaul
automobiles, automobile trucks and tractors of all kinds and makes.
To engage in the business of buying and selling gasoline, kerosene, lubricating oils and greases,
anti-freezes, tires, and other supplies for automobiles and tractors. To establish, maintain, and
operate a gasoline filling station; to repair tires and lubricate and wash cars; and to do
everthing ordinarily done by those engaged in that line of business.
To buy or lease real estate and erect thereon a building or buildings for the storage of
automobiles, automobile trucks, and tractors, or to buy or lease a building or buildings for that
purpose and to engage in the business of storing by the hour, day, week, month, or year
automobiles, automobile trucks, and tractors. As incidental to such business, to buy and sell
accessories and supplies for automobiles, automobile trucks, and tractors and to repair and
overhaul same.
ARTICLE SIX
The class and number of shares which the corporation proposes to issue without further report to
the Secretary of State, and the consideration (expressed in dollars) to be received by the
corporation therefor, are:
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common |
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1,000 |
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1,000.00 |
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ARTICLE SEVEN
The corporation will not commence business until at least one thousand dollars has been received as
consideration for the issuance of shares.
ARTICLE EIGHT
The
number of directors to be elected at the first meeting of the
shareholders is: one
ARTICLE NINE
PARAGRAPH 1: It is estimated that the value of all property to be owned by the corporation for the
following year wherever located will be $
PARAGRAPH 2: It is estimated that the value of the property to be located within the State of
Illinois during
the following year will be $
PARAGRAPH 3: It is estimated that the gross amount of business which will be transacted by the
corporation
during the following year will be $
PARAGRAPH 4: It is estimated that the gross amount of business which will be transacted at or from
places of business in the State of Illinois during the following year will be $
NOTE: If all the property of the corporation is to be located in this State and all of its business
is to be transacted at or from places of business in this State, or if the incorporators elect to
pay the initial franchise tax on the basis of its entire stated capital and paid-in surplus, then
the information called for in Article Nine need not be stated.
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Fred B Barbara
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PAID
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Incorporators |
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MAY 16 1979
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NOTE: There may be one or more incorporators. Each incorporator shall be either a corporation,
domestic or foreign, or a natural person of the age of twenty-one years or more. If a corporation
acts as incorporator, the name of the corporation and state of incorporation shall be shown and the
execution must be by its President or Vice-President and verified by him, and the corporate seal
shall be affixed and attested by its Secretary or an Assistant Secretary.
OATH AND ACKNOWLEDGMENT
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STATE OF ILLINOIS |
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I, Anthony F. Spina, A Notary
Public, do hereby certify that on the 30th day of April 1979 Fred Barbara personally appeared before me and being first duly sworn by me acknowledged the signing of the
foregoing document in the respective capacities therein set forth and declared that the statements
therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year above written.
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(NOTARIAL SEAL) |
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/s/ [ILLEGIBLE] |
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Here
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FORM B C A-47
ARTICLES OF INCORPORATION
The
following fees are required to be paid at the time of issuing Certificate of Incorporation:
Filing fee $75.00; Initial license fee of 50¢ per $1,000.00 or 1/20th of 1% of the amount of stated
capital and paid-in surplus the corporation proposes to issue without, further report (Article Six;
Initial franchise tax of 1/10th of 1% of the issued, as above noted. However, the minimum initial
franchise fax is $25.00 and varies monthly on $25,000, or less, as
follows: January, $37.50;
February, $35.42; March, $33.33; April, $31.25; May, $29.17; June, $27.08; July, $25.00;
August, $22.92; September, 20.83; October, $18.75; November, $16:67;
December, $14.58; (Sec
Sec. 133 BCA).
In excess of $25. 000, the franchise tax per $1,000.00 is as follows: Jan., $1.50; Feb., 1,4167;
March, 1.3334; April, 1.25; May, 1.1667; June, 1.0834; July, 1.00;
Aug., .9107; Sept., .8334;
Oct. .75; Nov. .6667; Dec., .5834.
All shares issued in excess of the amount mentioned in article Six of this application must be
reported within 60 days from date of issuance thereof, and franchise tax and license fee paid
thereon; otherwise, the corporation is subject to a penalty of 1% for each month on the
amount until reported and subject to a line of not to exceed $500.00.
The same fees are required for a subsequent issue of shares except the filing fee is $1.00 instead of $25.00.
MAY 16 1979
/s/ [ILLEGIBLE]
secretary of State
(7755375M12-76)
exv3w500
Exhibit 3.500
AMENDED AND RESTATED BYLAWS
OF
FRED BARBARA TRUCKING CO., INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be in
the City of Chicago, County of Cook, State of Illinois.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the State of Illinois as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
outside of the State of Illinois , as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on
such date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at such meeting.
Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate of
Incorporation, as the same may be amended from time to time, the holders of a majority of
the capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven months from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation
who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than six (6) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the
3
Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by
or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or within the State of Illinois. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any three (3) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram on twenty-four (24) hours notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, as the same may be amended from
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time to time, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as determined by the Board of Directors from time to time
by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified,
by the Board of Directors, a
5
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President, and any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board
of Directors shall possess the same power as the President to sign all contracts, certificates
6
and other instruments of the Corporation which may be authorized by the Board of Directors.
The Chairman of the Board of Directors shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these Bylaws or by the Board of
Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be
attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The
Board of Directors may give general authority to any other officer to affix the seal of the
Corporation and to
7
attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
8
Corporation the power to choose such other officers and to prescribe their respective duties
and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10)
days before the date of such
9
meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Written notice may also be given
personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, as the same may be amended from time to
time, if any, may be declared by a decision of a majority of the entire Board of Directors at any
regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock
of the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal, Illinois.
The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or
in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
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Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Illinois for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer
in defending or investigating a threatened or pending action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Illinois , or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against
13
such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in
this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, these Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws
may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such
meeting of stockholders or Board of Directors, as the case may be. Except as otherwise provided in
the Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
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exv3w501
Exhibit 3.501
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FILED
DONETTA DAVIDSON
COLORADO SECRETARY OF STATE |
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20011084612 C |
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$ 100.00 |
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SECRETARY OF STATE |
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04-25-2001 11:55:37 |
ARTICLES OF ORGANIZATION
OF
FRONTIER WASTE SERVICES (COLORADO), LLC
The undersigned, a natural person eighteen years of age or older, intending to organize a limited
liability company pursuant to §§7-80-203, Colorado Revised Statutes (C.R.S.), delivers these
Articles of Organization to the Colorado Secretary of State for filing, and states as follows:
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The name of the limited liability company is Frontier Waste Services (Colorado), LLC. |
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The principal place of business of the limited liability company is
1675 Broadway, Denver, Colorado 80202. |
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The name, and the business address, of the registered agent for service of process on the
limited liability company are: The Corporation Company, 1675 Broadway, Denver, Colorado 80202. |
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þ |
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The management of the limited liability company is vested in
managers
rather than in members. |
The name(s) and business address(es) of the initial manager(s) is (are):
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Organizer (signature):
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/s/ Larry J. Martin |
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Signers Name Printed:
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Larry J. Martin
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COMPUTER UPDATE COMPLETE
MJ
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Document processing fee |
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If document is filed on paper |
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125.00 |
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If document is filed electronically |
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25.00 |
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Fees & forms/cover sheets
are subject to change |
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To file electronically, access instructions
for this form/cover sheet and other
information or print copies of filed
documents, visit www.sos.state.co.us
and select Business Center. |
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Paper documents must be typewritten or machine printed. |
Colorado Secretary of State
Date and Time: 12/04/2008 07:48 AM
ID Number: 20011084612
Document number: 20081629793
Amount Paid: $25.00
ABOVE SPACE FOR OFFICE USE ONLY
Articles of Amendment
filed pursuant to §7-90-301, et seq. and §7-80-209 of the Colorado Revised Statutes (C.R.S.)
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ID number:
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20011084612 |
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1. Entity name:
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FRONTIER WASTE SERVICES (COLORADO), LLC
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(If changing the name of the limited liability
company, indicate name BEFORE the name change)
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2. New Entity name:
(if applicable) |
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3. Use of Restricted Words (if any of these
terms are contained in an entity name, true
name of an entity, trade name or trademark
stated in this document, mark the applicable
box):
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o bank or trust or any derivative thereof
o credit union o savings and loan
o insurance, casualty, mutual, or surety |
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4. Other amendments, if any, are attached. |
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5. If the limited liability companys period of
duration as amended is less than perpetual,
state the date on which the period of duration expires: |
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(mm/dd/yyyy) |
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OR |
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If the limited
liability companys period of duration as amended is perpetual, mark this box: þ |
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6. (Optional) Delayed effective date: |
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(mm/dd/yyyy) |
Notice:
Causing
this document to be delivered to the secretary of state for filing shall constitute the
affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury,
that the document is the individuals act and deed, or that the individual in good faith believes
the document is the act and deed of the person on whose behalf the individual is causing the
document to be delivered for filing, taken in conformity with the requirements of part 3 of article
90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual
in good faith believes the facts stated in the document are true and the document complies with the
requirements of that Part, the constituent documents, and the organic statutes.
Page 1 of 2
This perjury notice applies to each individual who causes this document to be delivered to the
secretary of state, whether or not such individual is named in the document as one who has caused
it to be delivered.
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7. Name(s) and address(es) of the individual(s)
causing the document to be delivered for filing:
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White
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Jo Lynn |
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(Last)
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18500 North Allied Way |
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(Street name and number or Post Office Box information)
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Phoenix |
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85054 |
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United States |
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(Province if applicable) |
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(Country if not US) |
(The document need not state the true name and address of more than one individual. However, if you
wish to state the name and address of any additional individuals causing the document to be
delivered for filing, mark this box o and include an attachment stating the name and address of
such individuals.)
Disclaimer:
This form, and any related instructions, are not intended to provide legal, business or tax advice,
and are offered as a public service without representation or warranty. While this form is believed
to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as
the same may be amended from time to time, remains the responsibility of the user of this form.
Questions should be addressed to the users attorney.
Page 2 of 2
ATTACHMENT TO
ARTICLES OF AMENDMENT OF
FRONTIER WASTE SERVICES (COLORADO), LLC
(ID #20011084612)
Paragraph 4 of the Articles of Organization of Frontier Waste Services (Colorado), LLC is hereby
amended in its entirety as follows:
4. The
management of the limited liability company is vested in the sole
member rather than in
managers. The name and address of the limited liability companys sole member is Frontier Waste
Services, L.P., 18500 North Allied Way, Phoenix, Arizona 85054.
exv3w502
Exhibit 3.502
OPERATING AGREEMENT
OF FRONTIER WASTE SERVICES (COLORADO), LLC
This Operating Agreement (the Agreement) of FRONTIER WASTE SERVICES (COLORADO), LLC (the
Company) is executed as of May 17, 2001, by FRONTIER WASTE SERVICES, L.P., a Texas limited
partnership, the sole member of the Company (the Member), and shall bind the Member, the Company,
and any other person who may acquire any interest in the Company. This Agreement shall supercede
and replace the Companys Regulations, dated April 25, 2001, in their entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not otherwise
defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to the
provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is Frontier Waste Services (Colorado), LLC. All
business of the Company shall be conducted in the Company name. The Company shall hold its property
in the name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Colorado law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Colorado shall
be c/o The Corporation Trust Company, 1675 Broadway, Denver, Colorado 80202. The registered office
may be changed to any other place within the State of Colorado upon the consent of the Member. The
Company may maintain a registered office in any state within which it does business at any location
approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Colorado are The Corporation Trust Company,
1675 Broadway, Denver, Colorado, 80202. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles of
Organization deemed necessary to reflect amendments to this Agreement that the Member adopts in
accordance with the terms of this Agreement. Upon the approval of any amendments by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit
A to this Agreement.
2.2 Contributions of Member. The Member has contributed to the Company cash or other
assets. The Member shall not be obligated to make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member in its sole discretion, shall periodically distribute
cash and property of the Company. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have general
supervision of the business of the Company and shall see that all orders and resolutions of the
Member are carried into effect. The President shall execute all bonds, mortgages,
contracts and other instruments of the Company, except where required or permitted by law to be
otherwise signed and executed and except that the other officers of the Company may sign and
execute documents when so authorized by this Agreement, the Member, or the President. The President
shall also perform such other duties and may exercise such other powers as from time to time may be
assigned to him by this Agreement or by the Member.
2
4.2.2 Vice Presidents. At the request of the President or in his absence or in the event
of his inability or refusal to act, the Vice President or the Vice Presidents, if there are more
than one, shall perform the duties of the President, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the President. Each Vice President shall perform
such other duties and have such other powers as the President from time to time may prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer,
and in the absence of the Treasurer or in the event of his disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the Member, an Assistant
Treasurer shall give the Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Member for the faithful performance of the duties of his office and for the
restoration to the Company, in case of his death, resignation, retirement, or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
3
4.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member and its officers and any officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company;
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 7-80-808 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to carry on
its business, except insofar as may be necessary for the winding up of its business, but the
Companys separate existence shall continue until articles of dissolution has been filed with the
Colorado Secretary of State or until a decree dissolving the Company has been entered by a court of
competent jurisdiction.
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(b) Liquidation and Distribution of Assets. The Member (or its authorized successor in
interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the Company
have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, the Member shall
execute and file articles of dissolution with the Colorado Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Colorado shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Colorado Limited Liability Company Act, as set forth in Title 7, Article 80
§7-80-101, et seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time.
Capital Contribution means the amount of money and the net fair market value of property
(other than money) contributed to the Company by the Member.
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Articles of Organization has the meaning given that term in Section 1.7.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company, trust,
or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended to or
shall be for the benefit of any Person not a party to this Agreement, and no such other Person
shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date
first above written.
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Frontier Waste Services, L.P.,
a Texas limited partnership
its Sole Member |
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By: |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation,
its General Partner |
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By:
Title:
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/s/ D. W. Slager
President
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6
EXHIBIT
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Name and Address of Member |
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Frontier Waste Services, L.P.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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100 |
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exv3w503
Exhibit 3.503
AMENDED AND RESTATED
ARTICLES OF ORGANIZATION
OF
FRONTIER WASTE SERVICES (UTAH), LLC
Frontier Waste Services (Utah), LLC, a Utah Limited Liability Company, duly organized and existing
under the laws of the state of Utah (the Company), does hereby amend and restate its Articles of
Organization in accordance with Sections 48-2c-409 et. seq., Utah Code Annotated, as follows:
FIRST. The name of the Company is Frontier Waste Services (Utah), LLC.
SECOND. The Companys original Articles of Organization were filed in the State of Utah on April
26, 2001.
THIRD. The Companys Articles of Organization are amended and restated in their entirety as
follows:
ARTICLE I
NAME
The name of the limited liability company is Frontier Waste Services (Utah), LLC (hereinafter the
Company).
ARTICLE II
PERIOD OF DURATION
The Companys duration shall continue through December 31, 2100, unless earlier terminated by law
or pursuant to the Companys Operating Agreement.
ARTICLE III
PURPOSES
The Company is organized for any legal and lawful purpose of engaging in any lawful act or activity
for which limited liability companies may be organized under the Utah Revised Limited Liability
Company Act.
ARTICLE IV
REGISTERED AGENT AND OFFICE; PRINCIPAL OFFICE
The name and address of the registered agent of the Company is CT Corporation System. The address
of the initial registered office and principal office of the Company is 50 West Broadway, Salt Lake
City, Utah 84101. The director of the Division of Corporations and Commercial Code is hereby
appointed as the registered agent of the Company for service of
process if the named registered agent has resigned, such agents authority has been revoked,
or such agent cannot be found or served with the exercise of reasonable diligence.
ARTICLE V
DESIGNATED OFFICE
The street address of the Companys designated office is c/o CT Corporation System, 50 West
Broadway, Salt Lake City, Utah 84101.
ARTICLE VI
MANAGEMENT
The Company shall be managed by members. The name and address of the sole member of the Company is
as follows:
Frontier Waste Services, L.P.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
ARTICLE VII
INDEMNIFICATION
The Company shall indemnify to the fullest extent permitted by the Utah Limited Liability Company
Act any person or entity who was or is a party or is threatened to be made a party to any threat,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that he, she or it is or was a member, manager or officer of
the Company.
FOURTH: The foregoing amendment was adopted on September 25, 2005.
FIFTH: The amendment was adopted by the Members and any Managers of the Company as required by
Section 48-2c-408(2) of the Utah Revised Limited Liability Company Act.
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IN WITNESS WHEREOF, the undersigned have duly executed these Articles of Organization as of the
25th day of September, 2005, in accordance with the requirements of Section 48-2c-409(4)(a) to be
filed with the Division.
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MEMBER: |
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Frontier Waste Services, L.P. |
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By:
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Allied Waste Landfill Holdings,
Inc.,
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a Delaware corporation, general partner |
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By:
Its:
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/s/ Jo Lynn White
Jo Lynn White, Secretary
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ACCEPTANCE AS REGISTERED AGENT: |
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CT Corporation System |
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841050
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exv3w504
Exhibit 3.504
OPERATING AGREEMENT
OF
FRONTIER WASTE SERVICES (UTAH), LLC
This Operating Agreement (the Agreement) of FRONTIER WASTE SERVICES (UTAH), LLC (the
Company) is executed as of May 17, 2001, by FRONTIER WASTE SERVICES, L.P., a Texas limited
partnership, the sole member of the Company (the Member), and shall bind the Member, the
Company, and any other person who may acquire any interest in the Company. This Agreement shall
supercede and replace the Companys Regulations, dated April 26, 2001, in their entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is Frontier Waste Services (Utah), LLC. All business
of the Company shall be conducted in the Company name. The Company shall hold its property in the
name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Utah law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Utah shall be c/o
C T Corporation System, 50 West Broadway, Salt Lake City, Utah 84101. The registered office may be
changed to any other place within the State of Utah upon the consent of the Member. The Company may
maintain a registered office in any state within which it does business at any location approved by
the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Utah are C T Corporation System, 50 West
Broadway, Salt Lake City, Utah 84101. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles of
Organization deemed necessary to reflect amendments to this Agreement that the Member adopts in
accordance with the terms of this Agreement. Upon the approval of any amendments, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit A
to this Agreement.
2.2 Contributions of Member. The Member has contributed to the Company cash or other
assets. The Member shall not be obligated to make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION
3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion, shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions
of the Member are carried into effect. The President shall execute all bonds, mortgages, contracts
and other instruments of the Company, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Company may sign and execute
documents when so authorized by this Agreement, the Member, or the President. The President shall
also perform such other duties and may exercise such other powers as from time to time may be
assigned to him by this Agreement or by the Member.
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4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
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4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office
all accounts, books and other relevant Company documents. The books of account of the Company shall
be prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company;
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 48-2c-1213 of the Act.
6.2 Winding Up.
(a)
General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of dissolution has been filed with
the Division of Corporations and Commercial Code of the Utah Department of Commerce or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
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(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, articles of
dissolution shall be executed and filed by the Member shall execute and file articles of
dissolution with the Division of Corporations and Commercial Code of the Utah Department of
Commerce.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Utah shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Utah Revised Limited Liability Company Act, as set forth in Title 48, Chapter
2c, § 48-2c-101, et seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time.
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Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Articles of Organization has the meaning given that term in Section 1.7.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company, trust, or
other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Frontier Waste Services, L.P., a
Texas limited partnership its
Sole Member
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By: |
Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation,
its General Partner |
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By: |
/s/ D. W. Slager
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Title : |
President |
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EXHIBIT A
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Percentage |
Name and Address of Member |
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Interest |
Frontier Waste Services, L.P.
15880
North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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100 |
% |
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exv3w505
Exhibit 3.505
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W. Fox McKelthen Secretary of State
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ARTICLES OF ORGANIZATION (R.S. 12:1301)
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Domestic Limited Liability Company
Enclose $60.00 filing fee
Make remittance payable to
Secretary of State
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Return to:
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Commercial Division
P.O. Box 94215
Baton Rouge, LA 70804-9125
Phone (225)925-4704
Web Site: www.sec.state.la.us |
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STATE OF
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TEXAS
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Check one:
þ Business
o Non Profit |
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1.
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The name of this limited liability company is:
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FRONTIER WASTE SERVICES OF LOUISIANA L.L.C. |
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2. This company is formed for the purpose of: (check one) |
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Engaging in any lawful activity for which limited liability companies may be formed. |
(use for limiting activity)
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3.
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The duration of this limited liability company is: (may be perpetual)
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PERPETUAL |
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Signatures: |
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/s/ Larry Martin
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FOX MCKEITHEN Secretary of State |
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/s/ Mack Mandell
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Received & Filed DATE OCT 4, 2000 |
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/s/ Lynn Raicliff |
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Sworn to
and subscribed before me, the undersigned Notary Public, on this date: OCTOBER 4, 2000
(See
instructions on back)
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W. Fox McKeithen Secretary of State
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LIMITED LIABILITY COMPANY INITIAL REPORT (R.S. 12:1305 (E))
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1. |
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The name of this limited liability company is: FRONTIER WASTE SERVICES OF LOUISTANA L.L.C. |
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The location and municipal address, not a post office box only, of this limited liability companys registered office: |
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8550 United Plaza Boulevard Baton Rouge. LA 70809 |
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The full name and municipal address, not a post office box only, of each of this limited liability companys registered agent(s) is/are: |
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C T CORPORATION SYSTEM, 8550 United Plaza Boulevard, Baton Rouge. LA 70809 |
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4. |
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The names and municipal addresses, not a post office box only, of the first managers, or the members: |
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LARRY MARTIN; 2100 WEST LOOP SOUTH, SUITE 1450, HOUSTON, TEXAS 77027 |
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MACK MANDELL; 2100 WEST LOOP SOUTH, SUITE 1450, HOUSTON, TEXAS 77027 |
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LYNN RAICLIFF; 2100 WEST LOOP SOUTH, SUITE 1450, HOUSTON, TEXAS 77027 |
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To be signed by each person who signed the articles of organization: |
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/s/ Larry Martin
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/s/ Mack Mandell
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/s/ Lynn Raicliff |
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AGENTS AFFIDAVIT AND ACKNOWLEDGEMENT OF ACCEPTANCE
I hereby acknowledge and accept the appointment of registered agent for and on behalf of the above
named limited liability company.
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Registered agent(s) signature(s): CT CORPORATION SYSTEM |
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/s/ Victor Alfano
VICTOR ALFANO
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ASSISTANT SECRETARY |
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Sworn to and subscribed before me, the undersigned Notary Public, on this date:
(See instructions on back)
exv3w506
Exhibit 3.506
OPERATING AGREEMENT
OF FRONTIER WASTE SERVICES OF LOUISIANA L.L.C.
This Operating Agreement (the Agreement) of FRONTIER WASTE SERVICES OF LOUISIANA
L.L.C. (the Company) is executed as of May 17, 2001, by FRONTIER WASTE SERVICES, L.P., a Texas
limited partnership, the sole member of the Company (the Member), and shall bind the Member, the
Company, and any other person who may acquire any interest in the Company. This Agreement shall
supercede and replace the Companys Regulations, dated October 4, 2000, in their entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and
not otherwise defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant
to the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is Frontier Waste Services of Louisiana L.L.C. All
business of the Company shall be conducted in the Company name. The Company shall hold its property
in the name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Louisiana law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Louisiana shall
be c/o C T Corporation System, 8550 United Plaza Boulevard, Baton Rouge, Louisiana 70809. The
registered office may be changed to any other place within the State of Louisiana upon the consent
of the Member. The Company may maintain a registered office in any state within which it does
business at any location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Louisiana are C T Corporation System, 8550
United Plaza Boulevard, Baton Rouge, Louisiana 70809. The Companys agent for service of legal
process may be changed upon the consent of the Member.
1.7 Articles of Organization. The Member shall file any amendments to the Articles of
Organization deemed necessary to reflect amendments to this Agreement that the Member adopts in
accordance with the terms in this Agreement. Upon the approval of any amendments, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit A
to this Agreement.
2.2 Contributions of Member. The Member has contributed to the Company cash or other
assets. The Member shall not be obligated to make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member in its sole discretion, shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in
this Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in this Agreement or in resolutions duly
adopted by the Member on behalf of the Company. The officers of the Company may include a
president, vice presidents, an executive vice president, a secretary, a treasurer, and such other
officers as the Member deems appropriate. The officers of the Company will be entitled to such
compensation for their services as the Member may reasonably determine from time to time. Unless
otherwise specified by the Member, the following officers shall have the authority to engage in the
activities set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions
of the Member are carried into effect. The President shall execute all bonds, mortgages, contracts
and other instruments of the Company, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Company may sign and execute
documents when so authorized by this Agreement, the Member, or the President. The President shall
also perform such other duties and may exercise such other powers as from time to time may be
assigned to him by this Agreement or by the Member.
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4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform
such duties and have such powers as from time to time may be assigned to them by the Member. The
Member may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
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4.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member and its officers and any officers of the Company
(the Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with the
defense of any action based on any such act or omission; provided, however, no Indemnified Party
shall be indemnified from any liability for fraud, bad faith, willful misconduct, or gross
negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office
all accounts, books and other relevant Company documents. The books of account of the Company shall
be prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate
account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company;
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 12:1335 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until articles of dissolution has been filed with
the Louisiana Secretary of State or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
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(b) Liquidation and Distribution of Assets. The Member (or its authorized
successor in interest) shall be responsible for overseeing the winding up and liquidation of the
Company and shall take full account of the Companys liabilities and assets upon dissolution. Any
assets not required to discharge any liabilities of the Company shall be distributed to the
Member. Upon the completion of the winding up, liquidation and distribution of the assets, the
Company shall be deemed terminated. The Company shall comply with any applicable requirements of
the Act pertaining to the winding up of the affairs of the Company and the final distribution of
its assets.
6.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, the Member
shall execute and file articles of dissolution with the Louisiana Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Louisiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Louisiana Limited Liability Company Act, as set forth in Chapter 22,
§12:1301, et seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
5
Articles of Organization has the meaning given that term in Section 1.7.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Frontier Waste Services, L.P., a Texas limited partnership its Sole Member |
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By: |
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Allied Waste Landfill Holdings, Inc., a Delaware corporation, its General Partner |
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By:
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/s/ D.W. Slager |
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Title:
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President |
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EXHIBIT A
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Percentage |
Name and Address of Member |
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Interest |
Frontier Waste Services, L.P. |
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15880 North Greenway Hayden Loop
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100 |
% |
Suite 100 |
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Scottsdale, Arizona 85260 |
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7
exv3w507
Exhibit 3.507
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FILED |
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In the Office of the |
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Secretary of State of Texas |
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MAY 5 1999 |
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Corporations Section |
STATE OF TEXAS
CERTIFICATE OF LIMITED PARTNERSHIP
The
undersigned General Partners, desiring to form a limited partnership
under the provisions
of the Texas Revised Limited Partnership Act, certify as follows:
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The name of the partnership is Frontier Disposal, L.P. |
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2. |
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The address of the partnerships registered office is 777 Post Oak Boulevard,
Suite 400, Houston, Harris County, Texas 77056. |
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3. |
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The name and address of the partnerships registered agent and registered
office for service of process is Steelhammer & Miller, P.C. at Three Riverway, Suite
700, Houston, Texas 77056. |
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4. |
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The address of the principal office where records are required to be kept or
made available is 777 Post Oak Boulevard, Suite 400, Houston, Harris County, Texas
77056. |
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5. |
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The name, mailing address, and street address of the business or residence of
each general partner is as follows: |
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Business or Residence |
Name |
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Mailing Address |
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Address |
Frontier
Disposal (Texas), L.L.C.
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777 Post Oak Blvd.
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777 Post Oak Blvd. |
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Suite 400
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Suite 400 |
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Houston, Texas 77056
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Houston, Texas 77056 |
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This certificate of limited partnership shall be effective on the date of
filing with the Secretary of State. |
I
affirm, under the penalties of perjury, that this certificate is executed on May 4, 1999, and
to the best of my knowledge and belief, the facts stated in this certificate are true.
Executed on May 4, 1999.
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FRONTIER DISPOSAL (TEXAS), L.L.C., the General Partner |
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By:
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/s/ Robert H. Steelhammer |
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Robert H. Steelhammer, Vice President, |
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Secretary and Manager |
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FILED |
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In the Office of the |
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Secretary of State of Texas |
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MAR 31 2000 |
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Corporations Section |
AMENDMENT TO
THE CERTIFICATE OF
LIMITED PARTNERSHIP
OF FRONTIER DISPOSAL, L.P.
The
undersigned General Partner of Frontier Disposal, L.P., a Texas limited partnership, certifies
the following amendment to the Certificate of Limited Partnership
that was filed on May 5, 1999 in
the Office the Secretary of State:
Paragraph 1 of the Certificate of Limited Partnership is amended to read:
1. The name of the limited partnership is Frontier Waste Services, L.P.
This amendment to the certificate of limited partnership shall be effective on the date of filing
with the Secretary of State.
I affirm, under penalty or perjury, that this Certificate of Amendment is executed on March
31, 2000 and, to the best of my knowledge and belief, the facts stated in this Certificate are
true.
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Dated: March 31, 2000 |
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FRONTIER DISPOSAL (TEXAS), |
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L.L.C., the General Partner |
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By:
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/s/ Larry J. Martin |
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Larry J. Martin, Manager and |
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President |
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FILED |
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In the Office of the |
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Secretary of State of Texas |
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SEP 28 2005 |
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Corporations Section |
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF LIMITED PARTNERSHIP
OF
FRONTIER WASTE SERVICES L.P.
Pursuant to the provisions of Section 2.02 of the Texas Revised Limited
Partnership Act, the undersigned limited partnership desires to amend its certificate of
limited partnership and for that purpose submits the following certificate of amendment.
1. |
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The name of the limited partnership is Frontier Waste Services, L.P. |
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The certificate of limited partnership is amended as follows: |
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Paragraph 5 of the Certificate of Limited Partnership is amended to read: |
5. The name, mailing address, and street address of the business of the general
partner is: Allied Waste Landfill Holdings, Inc., 15880 N. Greenway-Hayden Loop, #100,
Scottsdale, Arizona 85260.
IN WITNESS WHEREOF, the undersigned executed this Amendment to the Certificate of Limited
Partnership on this 28th day of September, 2005.
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FRONTIER WASTE SERVICES, L.P. |
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By:
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, its general partner |
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/s/ Jo Lynn White |
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Jo Lynn White, Secretary |
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Corporations Section P.O. Box 13697 Austin, Texas 78711-3697
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Roger Williams Secretary of State |
Office of the Secretary of State
November 15, 2006
CT Corporation System
701 Brazos, Ste. 360
Austin, TX 78701 USA
RE: FRONTIER WASTE SERVICES, L.P.
File Number: 12011610
File Date: 11/14/2006
It has been our pleasure to file the amendment to the certificate or application of limited
partnership for the referenced limited partnership. This letter may be used as evidence of the
filing and payment of the filing fee.
If we may be of further service at any time, please let us know.
Sincerely,
Corporations Section
Statutory Filings Division
(512) 463-5555
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Come visit us on the internet at http://www.sos.state.tx.us/ |
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Phone: (512) 463-5555
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Fax: (512) 463-5709
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TTY: 7-1-1 |
Prepared by: Mary Ann Conkel
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Document: 151337080002 |
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Corporations Section P.O. Box 13697 Austin, Texas 78711-3697
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Roger Williams Secretary of State |
Office of the Secretary of State
CERTIFICATE OF FILING
OF
FRONTIER WASTE SERVICES, L.P.
Filing Number: 12011610
The undersigned, as Secretary of State of Texas, hereby certifies that an amendment to the
certificate of limited partnership or the application for registration as a foreign limited
partnership for the above named limited partnership has been received in this office and filed as
provided by law on the date shown below.
Accordingly, the undersigned, as Secretary of State hereby issues this Certificate evidencing the
filing in this office.
Dated: 11/14/2006
Effective: 11/14/2006
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/s/ Roger Williams |
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Roger Williams |
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Secretary of State |
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Come visit us on the internet at http://www.sos.state.tx.us/ |
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Phone: (512) 463-5555
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Fax: (512) 463-5709
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TTY: 7-1-1 |
Prepared by: Mary Ann Conkel
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Document: 151337080002 |
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Form 424
(Revised 01/06)
Return in duplicate to:
Secretary of State
P.O. Box 13697
Austin, TX 78711-3697
512 463-5555
FAX: 512/463-5709
Filing Fee: See instructions
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Certificate of Amendment |
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This space reserved for office use.
FILED In the Office of the
Secretary of State of Texas NOV 14 2006
Corporations Section |
Entity Information
The name of the filing entity is:
Frontier Waste Services, L.P.
State the name of the entity as currently shown in the records of the secretary of state. If
the amendment changes the name of the entity, state the old name and not the new name.
The filing entity is a: (Select the appropriate entity type below.)
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o For-profit Corporation
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o Professional Corporation |
o Nonprofit Corporation
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o Professional Limited Liability Company |
o Cooperative Association
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o Professional Association |
o Limited Liability Company
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þ Limited Partnership |
The file number issued to the filing entity by the secretary of state is: 0012011610
The date of formation of the entity is: 05/05/1999
Amendments
1. Amended Name
(If the purpose of the certificate of amendment is to change the name of the entity, use the following statement)
The amendment changes the certificate of formation to change the article or provision that
names the filing entity. The article or provision is amended to read as follows:
The name of the filing entity is: (state the new name of the entity below)
The name of the entity must contain an organizational designation or accepted abbreviation of
such term, as applicable.
2. Amended Registered Agent/Registered Office
The amendment changes the certificate of formation to change the article or provision
stating the name of the registered agent and the registered office address of the filing entity.
The article or provision is amended to read as follows:
Form 424
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Registered Agent
(Complete either A or B, but not both. Also complete C.)
o A. The registered agent is an organization (cannot be entity named above) by the name of:
OR
o B. The registered agent is an individual resident of the state whose name is:
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First Name
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M.I.
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Last Name
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Suffix |
C. The business address of the registered agent and the registered office address is:
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TX |
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Street Address (No P.O. Box)
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City
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State
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Zip Code |
3. Other Added, Altered, or Deleted Provisions
Other changes or additions to the certificate of formation may be made in the space
provided below. If the space provided is insufficient, incorporate the additional text by
providing an attachment to this form. Please read the instructions to this form for further
information on format.
Text Area (The attached addendum, if any, is incorporated herein by reference.)
o Add each of the following provisions to the certificate of formation. The
identification or reference of the added provision and the full text are as follows:
þ Alter each of the following provisions of the certificate of formation. The
identification or reference of the altered provision and the full text of the provision as
amended are as follows:
The new principal business address is: 18500 North Allied Way, Phoenix, Arizona 85054
o
Delete each of the provisions identified below from the certificate of formation.
Statement of Approval
The amendments to the certificate of formation have been approved in the manner required by
the Texas Business Organizations Code and by the governing documents of the entity.
Form 424
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Effectiveness of Filing
A. þ This document becomes effective when the document is filed by the secretary of state.
B. o This document becomes effective at a later date, which is not more than ninety (90) days from
the date of signing. The delayed effective date is:
C. o This document takes effect upon the occurrence of a future event or fact, other than the
passage of time. The 90th day-after the date of signing is:
The following event or fact will cause the document to take effect in the manner described below:
Execution
The undersigned signs this document subject to the penalties imposed by law for the submission of
a materially false or fraudulent instrument.
Date: November 6, 2006
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/s/ Ryan N. Kenigsberg
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Ryan N. Kenigsberg, Attorney-In-Fact |
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Signature and title of authorized person(s) (see instructions) |
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Form 424
8
exv3w508
Exhibit 3.508
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
FRONTIER WASTE SERVICES, L.P.
This Amended and Restated Agreement of Limited Partnership is entered into as of May 17,
2001, by and between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General
Partner, and ALLIED WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner,
on the terms and conditions set forth in this Agreement. This Agreement shall supersede and
replace the Agreement of Limited Partnership of Frontier Disposal, L.P. dated April 13, 1999, in
its entirety.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 below.
1.2 Formation. The Partnership was formed as a Texas Limited Partnership upon the
filing of its certificate of limited partnership with the Texas Secretary of State on May 5, 1999.
The Partners hereby agree to continue the Partnership as a limited partnership pursuant to the
provisions of the Act and upon the terms and conditions set forth in this Agreement.
1.3 Name. The name of the Partnership is Frontier Waste Services, L.P. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of non-hazardous solid waste management, and to engage in any other activity permitted
under Texas law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Texas shall
be C T Corporation System, 350 North St. Paul Street, Dallas, County of Dallas. The registered
office may be changed to any other place within the State of Texas by the General Partner, upon
written notice to the Limited Partner. The Partnership may maintain a registered office in any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the
registered agent for service of legal process on the Partnership in Texas are C T Corporation
System, 350 North St. Paul Street, Dallas, Texas 75201. The agent for service of legal process
may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership commenced on May 5, 1999, the date on which
the Partnerships certificate of limited partnership was filed with the Texas Secretary of State,
and shall continue in perpetuity until the Partnership is dissolved as set forth in this Agreement
or pursuant to the Act.
1.8 Filings. The Partners shall take any and all other actions, and shall execute
and file such amendments to this Agreement or to the Partnerships certificate of limited
partnership
as are reasonably necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of the State of Texas. The Partners hereby authorize the General
Partner to elect to become a registered limited liability partnership if, on the General Partners
direction, the General Partner determines it is appropriate to do so.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive (a) a credit to its Capital Account equal to the value of
its Capital Contribution, and (b) a Percentage Interest in the Partnership, as set forth on
Exhibit A. No Partner shall be obligated to make additional Capital Contributions to the
Partnership, unless such Partner agrees in writing to do so.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. During any period in which the
Partnership is also a registered limited liability partnership, no Partner shall be liable for the
debts, liabilities, contracts or any other obligations of the Partnership, except as specifically
provided in the Act. Except as agreed upon by the Partners, and except as otherwise provided by the
Act or by any other applicable state law, no Partner shall be required to make any other Capital
Contributions or to loan any funds to the Partnership. No Partner shall have any personal liability
for the repayment of its Capital Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 below, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
2
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 below, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4
above, in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
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(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
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operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
5.5 Indemnification. To the fullest extent permitted by law, the Partnership, its
receiver or its trustee shall defend, indemnify and save harmless the Partners and their officers
and directors (the Indemnified Parties) from and against all losses, claims, costs, liabilities
and damages incurred by them by reason of any act performed or omitted to be performed by them in
connection with the business of the Partnership, including attorneys fees incurred by them in
connection with the defense of any action based on any such act or omission; provided, however, no
Indemnified Party shall be indemnified from any liability for fraud, bad faith, willful misconduct
or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the other Partners. A transferee
of a Partners interest in the Partnership will be admitted as a Substituted Limited Partner only
pursuant to Section 8.3 below. Any purported Transfer that does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution
of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of this Section 8 (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 below, such Person:
(a) shall be an assignee of a Partners interest, as provided in the Act;
5
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the other Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 above, the remaining General
Partners, if any, shall have the right and the power to continue the Partnership and its business
without dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 above, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 above in the event any Person ceases
to be a General Partner pursuant to Section 9.1 above; or
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(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 above, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 above and no Person named as a successor General
Partner in Section 9.3 is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or the
Limited Partners, by majority vote, if there is no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1 above.
Notwithstanding anything in Section 3 to the contrary, any Profits, Losses and items
thereof of the Partnership for the taxable year in which the liquidation of the Partnership occurs
shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners as
closely as possible to distributions of such liquidation proceeds pursuant to the priorities set
forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the Partners,
a certificate of cancellation shall be executed and filed by the General Partner with the Texas
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 above, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
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Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify
in any manner any provision of Section 8 above.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Texas Law. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Texas Revised Limited Partnership Act, as amended from time to time
(or any corresponding provisions of succeeding law).
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12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4.
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, limited partnership, corporation, limited
liability company, trust, or other legal entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in
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accordance with Code Section 703(a), reduced by any items of income or gain subject to special
allocation pursuant to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
Allied Waste Landfill Holdings, Inc., |
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Allied Waste Systems Holdings, Inc., |
a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White
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Its:
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Secretary
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$10.00 cash
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1 |
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Allied Waste Landfill Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Limited Partner:
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$990.00 cash
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99 |
% |
Allied Waste Systems Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w509
Exhibit 3.509
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MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU |
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(FOR BUREAU USE ONLY)
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FILED
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Date Received |
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JUN 26 1991 |
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JUN 28 1991
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EFFECTIVE DATE: |
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Administrator
MICHIGAN DEPT OF COMMERCE
Corporation & Securities Bureau |
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CORPORATION IDENTIFICATION NUMBER
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284-097 |
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ARTICLES OF INCORPORATION
For use by Domestic Profit Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation
executes the following Articles:
Article I
The name of the corporation is:
G. Van Dyken Disposal Inc.
Article II
The purpose or purposes for which the corporation is formed is to engage in any activity
within the purposes for which corporations may be formed under the Business Corporation Act of
Michigan.
Article III
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The total authorized shares: |
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1. Common Shares
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10,000 |
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Preferred Shares |
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2. A statement of all or any of the relative rights, preferences and limitations of the
shares of each class is as follows:
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GOLD SEAL APPEARS ONLY ON ORIGINAL
Article IV
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1. The address of the registered office is: |
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3362 8th Avenue
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Hudsonville |
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Michigan
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49426 |
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(Street Address) |
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(ZIP Code)
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2. The mailing address of the registered office if different from the
registered office address: |
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Michigan |
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(P.O. Box) |
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(City) |
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(ZIP Code)
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3. The name of the resident agent at the registered office is: Gerrit Van Dyken |
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Article V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
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Name |
Residence
or Business Address |
Gerrit Van Dyken
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3362 |
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8th Avenue
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Hudsonville, Michigan 49426 |
Randall Van Dyken
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3362 |
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8th Avenue
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Hudsonville, Michigan 49426 |
Gerald Van Dyken
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3362 |
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8th Avenue
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Hudsonville, Michigan 49426 |
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Article VI (Optional. Delete if not applicable)
When a compromise or arrangement or a plan of reorganization of this corporation is proposed
between this corporation and its creditors or any class of them or between this corporation and
its shareholders or any class of them, a court of equity jurisdiction within the state, on
application of this corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the corporation, may order a meeting of the creditors or class of
creditors or of the shareholders or class of shareholders to be affected by the proposed
compromise or arrangement or reorganization, to be summoned in such manner as the court directs.
If a majority in number representing
3/4 in value of the creditors or class of creditors, or of
the shareholders or class of shareholders to be affected by the proposed compromise or
arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of this
corporation as a consequence of the compromise or arrangement, the compromise or arrangement and
the reorganization, if sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, or on all the shareholders or class of
shareholders and also on this corporation.
Article VII (Optional. Delete if not applicable)
Any action required or permitted by the Act to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if consents
in writing, setting forth the action so taken, are signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote on the action were present and voted.
The written consents shall bear the date of signature of each shareholder who signs the consent.
No written consents shall be effective to take the corporate action referred to unless, within 60
days after the record date for determining shareholders entitled to express consent to or to
dissent from a proposal without a meeting, written consents signed by a sufficient number of
shareholders to take the action are
GOLD SEAL APPEARS ONLY ON ORIGINAL
ARTICLE VII (CONTINUED)
delivered to the corporation. Delivery shall be to the corporations registered office, its
principal place of business, or an officer or agent of the corporation having custody of the
minutes of the proceedings of its shareholders, Delivery made to a corporations registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to shareholders who have not consented in writing.
Use space below for additional Articles or for continuation of previous Articles. Please identify
any Article being continued or added. Attach additional pages if needed.
I (We), the incorporator(s) sign my (our) name(s) this 27th day of
June, 1991.
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/s/ Gerrit Van Dyken
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Gerrit Van Dyken |
/s/ Randall Van Dyken
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Randall Van Dyken |
/s/ Gerald Van Dyken
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Gerald Van Dyken |
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GOLD SEAL APPEARS ONLY ON ORIGINAL
exv3w510
Exhibit 3.510
BY-LAWS
OF
G. VAN DYKEN DISPOSAL INC.
Adopted as of June 28, 1991
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation shall be
located in Hudsonville, Michigan, except as the same may be changed from time to time by the Board
of Directors.
Section 2. Registered Office and Resident Agent. As required by Section 241 of
the Business Corporation Act, the Corporation shall maintain a registered office in the State of
Michigan. The Corporation shall appoint a resident agent whose business address is identical with
the registered office of the Corporation.
Section 3. Other Offices. The Corporation may have other offices at such other
place or places within or without the State of Michigan as the Board of Directors may designate or
as the business of the Corporation may require from time to time.
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meetings. Shareholder meetings shall be held
at the corporations principal executive office during regular business hours or at such other time
and place as the board of directors determines.
Section 2. Annual Meetings of Shareholders. Unless the shareholders have
executed a written consent in lieu of an annual meeting of the shareholders pursuant to Section 15
of these By-laws, or as may be otherwise permitted by law, an annual meeting of shareholders shall
be held at such date, time, and place as determined by resolution of the board of directors, but in
no event later than 2.00 p.m. on the last Monday (or the next business day if that Monday is a
holiday) of the 4th calendar month after the end of the corporations fiscal year.
Section 3. Special Meetings. The board of directors, the Chairperson, or the President
may call a special meeting of shareholders by giving notice of the meeting to each shareholder
entitled to vote at the meeting.
Section 4. Notice. A written notice of any shareholders meeting shall be
mailed to each Shareholder of record not less than 10 days nor more than 60 days prior to such
meeting, which notice shall state the authority pursuant to which it was issued and shall set forth
the time and place of the meeting. In the case of special shareholders meetings, the notice also
shall state the purpose or purposes of the meeting.
Section 5. Adjournments. If a meeting is adjourned, it is not necessary to
give notice of the adjourned meeting if (i) the date, time, and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken, and (ii) at the adjourned
meeting only such business is transacted as might have been transacted at the original meeting. If
after the adjournment the board of directors fixes a new record date for the adjourned meeting, a
notice of the adjourned meeting shall be given in accordance with Section 4, above.
Section 6. Waiver of Notice. A shareholder or a shareholders
attorney-in-fact may waive the shareholders right to notice before or after a meeting by a signed
waiver of notice. A shareholders attendance at a meeting will result in a waiver of objection to:
(a) lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business at the
meeting; and
(b) consideration of a particular matter at the meeting that is not within the
purposes described in the meeting notice, unless the shareholder objects to considering the
matter when it is presented.
Section 7. List of Shareholders Entitled to Vote. The officer or agent having
charge of the stock transfer books for shares of the corporation shall make and certify a complete
list of the shareholders entitled to vote at a shareholder meeting or any adjournment thereof. The
list shall be:
(a) arranged alphabetically within each class and series, with the address of, and the
number of shares held by, each shareholder;
(b) produced at the time and place of the meeting;
(c) subject to inspection by any shareholder at any time during the meeting; and
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(d) prima facie evidence as to who are the shareholders entitled to examine the list
or to vote at the meeting.
Failure to comply with the requirements of this Section shall not affect the validity of an action
taken at the meeting before a shareholder makes a demand to comply with the requirements.
Section 8. Quorum. Unless a greater quorum is required by the articles of
incorporation or statute, shares entitled to cast a majority of the votes at a shareholder meeting
constitute a quorum at the meeting. The shareholders present in person or by proxy at the meeting
are counted for the purpose of determining a quorum. Once a quorum is present, business may be
conducted until adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. Whether or not a quorum is present, the meeting may be adjourned by a vote of the
shares present. When the holders of a class or series of shares are entitled to vote separately on
an item of business, each class or series must have a quorum, as determined by this Section, for
the purpose of transacting the item of business.
Section 9. Voting Rights. Except as otherwise provided by statute or the
articles of incorporation, each share is entitled to one vote on each matter submitted to a vote.
Section 10. Vote Required. An action, other than the election of directors, to
be taken by shareholder vote shall be authorized by a majority of the votes cast by shareholders
entitled to vote on the action, unless a greater vote is required by statute, the articles of
incorporation, or these bylaws. Unless the articles of incorporation provide otherwise, directors
shall be elected by a plurality of votes cast. Shareholders may not cumulate their votes.
Section 11. Class Voting. If the articles of incorporation provide that a
class of shares or a series of a class shall vote as a class, either generally or to authorize one
or more specified actions, such voting as a class or series shall be in addition to any other
required vote. Where voting as a class or series is required on an action other than the election
of directors, the action shall be authorized by a majority of the votes cast by the holders of the
class or series entitled to vote on the action, unless a greater vote is required by statute or the
articles of incorporation.
Section 12. Electronic Participation in Meeting. A shareholder may participate
in a shareholder meeting by a conference telephone or by other similar communications equipment
through which all persons participating in the meeting may communicate with the other participants,
if all participants are advised of the communications equipment and the names of the participants
in the meeting are disclosed to all participants. Such participation in a meeting constitutes
presence in person at the meeting.
Section 13. Conduct of Meetings. Shareholder meetings shall be conducted as
follows:
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(a) The chairperson of the meeting shall have absolute authority over matters of
procedure.
(b) If disorder arises that prevents the continuation of the business of the meeting,
the chairperson may adjourn the meeting.
(c) The chairperson may require any person who is not a shareholder of record or
holding a proxy to leave the meeting.
Section 14. Business Transacted. The business effectively transacted at a
shareholder meeting shall be confined to the following:
(a) any matter specified in the notice;
(b) any matter reasonably related to a matter specified in the notice; and
(c) any matter (i) the consideration of which is not objected to by any shareholder
attending the meeting, and (ii) notice of which is waived by all shareholders not attending
the meeting.
Section 15. Action Without a Meeting. Any action required or permitted to be
taken at a shareholder meeting may be taken without a meeting, without prior notice, and without a
vote, if:
(a) before or after the action all the shareholders entitled to vote at the meeting
consent in writing; or
(b) the articles of incorporation provide for shareholder action without a meeting,
and consents in writing setting forth the action taken are signed by the holders of
outstanding shares having not less than the minimum number of votes that would be necessary
to authorize or take the action at a meeting at which all shares entitled to vote on the
action were present and voted. A written consent under this subparagraph (b) must bear the
date of signature of each shareholder who signs the consent and is not effective to take
the corporate action referred to unless, within 60 days after the record date for
determining shareholders entitled to express consent to or to dissent from a proposal
without a meeting, written consents signed by a sufficient number of shareholders to take
the action are delivered to the corporation. Delivery shall be made to the corporations
registered office, its principal place of business, or an officer or agent of the
corporation having custody of the minutes of the proceedings of its shareholders. Delivery
made to a corporations registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to shareholders who have
not consented in writing.
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Section 16. Record Date.
(a) Shareholders Entitled to Notice and Vote. For the purpose of determining
shareholders entitled to notice of and to vote at a shareholder meeting or an adjournment
of a meeting, the board of directors may fix a record date, which may not precede the date
on which the board adopts the resolution fixing the record date. The date may not be more
than 60 nor less than 10 days before the date of the meeting. If a record date is not
fixed, the record date for determination of shareholders entitled to notice of or to vote
at a shareholder meeting shall be the close of business on the day next preceding the day
on which notice is given or, if no notice is given, the day next preceding the day on which
the meeting is held. When a determination of shareholders of record entitled to notice of
or to vote at a shareholder meeting is made as provided in this Section, the determination
applies to any adjournment of the meeting, unless the board of directors fixes a new record
date under this Section for the adjourned meeting.
(b) Shareholders Entitled to Express Consent or Dissent. For the purpose of
determining shareholders entitled to express consent to or to dissent from a proposal
without a meeting, the board of directors may fix a record date, which may not precede the
date on which the board adopts the resolution fixing the record date and may not be more
than 10 days after the board resolution. If a record date is not fixed and prior action by
the board of directors is required with respect to the corporate action to be taken without
a meeting, the record date is the close of business on the day on which the board
resolution is adopted. If a record date is not fixed and prior board action is not
required, the record date is the first date on which a signed written consent is delivered
to the corporation as provided in these bylaws.
(c) Other Actions. For the purpose of determining shareholders entitled to receive
payment of a share dividend or distribution, or allotment of a right, or for the purpose of
any other action, the board of directors may fix a record date, which may not precede the
date on which the board adopts the resolution fixing the record date. The date may not be
more than 60 days before the payment of the share dividend or distribution, allotment of a
right, or other action. If a record date is not fixed, the record date is the close of
business on the day on which the board resolution relating to the corporate action is
adopted.
Section 17. Proxies. A shareholder entitled to vote at a shareholder meeting
or to express consent or dissent without a meeting may authorize one or more other persons to act
for the shareholder by proxy. A proxy shall be signed by the shareholder or the shareholders
authorized agent or representative. The corporation may require a shareholders agent or
representative to present written evidence, satisfactory to the corporation, of authority to sign
the shareholders proxy. A proxy is not valid after the expiration of three years from its date
unless otherwise provided in the
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proxy. A proxy must be in writing and must be filed with the corporation at or before the meeting.
A proxy need not be sealed, witnessed, or acknowledged.
ARTICLE III
DIRECTORS
Section 1. Number and Term of Directors. The board of directors shall consist
of one or more directors as determined initially by the incorporator(s) and, thereafter, from time
to time by the board of directors. A director need not be a shareholder. The first board of
directors shall hold office until the first annual shareholder meeting. Directors shall be elected
at each annual shareholder meeting, except as provided in Section 2 of this article, and each
director shall hold office until a successor is elected and qualified. If shareholders of any class
or series of shares have the exclusive right to elect one or more directors, those directors may be
elected only by the vote of those shareholders.
Section 2. Vacancies. Except as otherwise provided in the articles of
incorporation, a vacancy occurring in the board (including a vacancy resulting from an increase in
the number of directors) may be filled by the shareholders, by the board or, if the directors
remaining in office constitute fewer than a quorum, by the affirmative vote of a majority of the
remaining directors. Except as otherwise provided in the articles of incorporation, if the holders
of any class of shares or series are entitled to elect one or more directors to the exclusion of
other shareholders, vacancies of that class or series may be filled by the holders of shares of
that class or series. A vacancy that will occur at a specific date, by reason of resignation
effective at a later date, may be filled before the vacancy occurs, but the newly elected or
appointed director may not take office until the vacancy occurs.
Section 3. Removal. The holders of a majority of the shares entitled to vote
for the election of directors may remove one or more directors with or without cause.
Section 4. Resignation. A director may resign by written notice to the
corporation. A resignation is effective upon its receipt by the corporation or at a later time
specified in the notice.
Section 5. Powers. The corporations business and affairs shall be managed by
or under the direction of the board of directors, except as otherwise provided by statute or the
articles of incorporation.
Section 6. Directors Compensation. The board of directors, by affirmative
vote of a majority of directors in office and irrespective of any personal interest of any of them,
may establish reasonable compensation for a directors services to the corporation as a director or
officer. Directors
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may also be reimbursed for their expenses, if any, of attendance at each meeting of the board or a
committee.
Section 7. Regular Meetings. Regular meetings of the board of directors shall
be held at the date, time, and place that the board determines. A notice to directors is not
required for a regular meeting, except that, when the board establishes or thereafter changes the
schedule of regular meetings, or changes the date, time, or place of a previously scheduled regular
meeting, notice of the action shall be given to each director who was absent from the meeting at
which the action was taken.
Section 8. Special Meetings. The Chairperson, the President, or directors
constituting at least one-third of the directors then in office may call a special meeting of the
board of directors by giving notice to each director.
Section 9. Notice of Meetings. Except as otherwise provided by these bylaws,
notice of the date, time, and place of each meeting of the board of directors shall be given to
each director by either of the following methods:
(a) by mailing a written notice of the meeting to the address that the director
designates or, in the absence of designation, to the last known address of the director, at
least five days before the date of the meeting; or
(b) by delivering a written notice of the meeting to the director at least one full
business day before the meeting, personally or by telecopier or telex, to the directors
last known office or home.
Section 10. Waiver of Notice. A directors attendance at or participation in a
meeting waives any required notice to the director of the meeting, unless, at the beginning of the
meeting or promptly upon the directors arrival, the director objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent to any action taken
at the meeting. A director may waive notice in writing before or after a meeting.
Section 11. Purpose of Meetings. Neither the business to be transacted nor the
purpose of a regular or special meeting need be specified in the notice or waiver of notice of the
meeting. If the purpose is stated in the notice, the business transacted at the meeting is not
limited to the purpose stated.
Section 12. Quorum and Required Vote. A majority of the directors then in
office, or of the members of a committee of the board of directors, constitutes a quorum for the
transaction of business, unless the articles of incorporation, these bylaws or, in the case of a
committee, the board resolution establishing the committee, provide for a larger or smaller number.
The vote of the majority of members present at a meeting at which a quorum is present constitutes
the action of the board or of the committee, unless the vote of a larger number is required by
statute, the articles of
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incorporation, these bylaws, or, in the case of a committee, the board resolution establishing the
committee.
Section 13. Action by Written Consent. Action required or permitted to be
taken under authorization voted at a meeting of the board of directors or a committee of the board
may be taken without a meeting if, before or after the action, all members of the board then in
office or of the committee consent to the action in writing. The written consents shall be filed
with the minutes of the board or committee. The consent has the same effect as a vote of the board
or committee for all purposes.
Section 14. Electronic Participation in Meeting. A member of the board of
directors or of a committee of the board may participate in a meeting by means of conference
telephone or similar communications equipment through which all persons participating in the
meeting can communicate with each other. Such participation in a meeting constitutes presence in
person at the meeting. A director must be permitted to participate in a meeting by such means if
the director so requests.
Section 15. Committees of Directors. The board of directors may designate one
or more committees consisting of one or more directors. The board may designate one or more
directors as alternate members of a committee, who may replace an absent or disqualified member at
a meeting of the committee. Unless prohibited by the board resolution creating the committee, in
the absence or disqualification of a committee member, the committee members present at a meeting
and not disqualified from voting, whether or not they constitute a quorum, may unanimously appoint
another director to act at the meeting in the place of the absent or disqualified member. A
committee, to the extent provided in the board resolution creating the committee, may exercise all
of the boards power and authority in the management of the business and affairs of the
corporation, except that a committee may not: (i) amend the articles of incorporation; (ii) adopt
an agreement of merger or consolidation; (iii) recommend to shareholders the sale, lease, or
exchange of all or substantially all of the corporations property and assets; (iv) recommend to
the shareholders a dissolution of the corporation or a revocation of a dissolution; (v) amend the
bylaws of the corporation; or (vi) fill vacancies in the board of directors. Unless a resolution of
the board of directors expressly so provides, a committee may not declare a distribution or
dividend or authorize the issuance of stock. A committee exists, and each member serves, at the
pleasure of the board. A committee may establish a time and place for regular meetings, for which
no notice is required, except that, if the committee changes the date, time, or place of a regular
meeting, notice of the change shall be given to each member who was absent from the meeting at
which the change was made. Otherwise, a notice of a committee meeting shall be given in the same
manner as a notice of a board meeting.
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ARTICLE IV
OFFICERS
Section 1. Appointment. The board of directors, at its first meeting following
appointment by the incorporator(s) and thereafter at its first meeting following the annual
shareholder meeting, shall appoint a President, Secretary, and Treasurer and may elect from their
number a Chairperson and one or more Vice Chairpersons. The board may also appoint one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers and agents that it deems
necessary. The board of directors need not appoint or elect an officer to an office that is already
filled and whose specified term has not expired. The same person may hold two or more offices, but
an officer may not execute, acknowledge or verify an instrument in more than one capacity if the
instrument is required by law, the articles of incorporation, or these bylaws to be executed,
acknowledged, or verified by two or more officers.
Section 2. Term, Removal, and Vacancies. An officer shall hold office for the
term the board specifies upon election or appointment and until a successor is elected or appointed
and qualified, or until the officers death, resignation, or removal. The board may remove an
officer with or without cause. An officer may resign by written notice to the corporation. The
resignation is effective upon its receipt by the corporation or at a later date specified in the
notice.
Section 3. Chairperson of the Board. The Chairperson of the board, if one is
elected, shall preside when present at all meetings of the shareholders and the board of directors.
The Chairperson shall perform any other duties and exercise any other authority that the board
prescribes and, unless otherwise provided by board resolution, is an ex officio member of
all committees. Except where by law the signature of the President is required, the Chairperson
possesses the same power and authority as the President to make and execute contracts, instruments,
papers, and documents of every kind in the name of and on behalf of the corporation.
Section 4. Vice Chairperson of the Board. During the unavailability or
disability of the Chairperson, or while that office is vacant, the Vice Chairpersons, in the order
the board designates, may exercise all of the powers and discharge all of the duties of the
Chairperson. A Vice Chairperson shall perform any other duties that the board prescribes.
Section 5. President. The President shall be the corporations chief executive
officer and have the general control and management of its business, under the direction of the
board. The President shall ensure that all orders and resolutions of the board are carried into
effect. Unless the board specifically provides otherwise, the President shall be an ex
officio member of all committees. The President shall perform all duties incident to the office
of President and other duties that the board prescribes. The President may make and execute
contracts, instruments, papers, and documents of every kind in the name and on behalf of the
corporation, except when the board specifies the
same to be done by another officer or agent. During the absence or disability of the
Chairperson and the
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Vice Chairpersons, or while those offices are vacant, the President shall preside over all
meetings of the board of directors and the shareholders and perform all of the duties and have all
of the power and authority of the Chairperson.
Section 6. Vice Presidents. The board may designate one or more Vice
Presidents to perform the duties and exercise the authority of the President during the Presidents
absence or disability. Each Vice President shall have the title and powers and perform the duties
as may be assigned to him from time to time by the President or the board of directors. In the
event of the Presidents absence or inability to act, the duties of his office, unless otherwise
specified by these Bylaws, shall be performed by the Vice Presidents in the order of seniority or
priority established by the Board of Directors and, when so acting, the duly authorized Vice
President shall have all the powers of, and be subject to the restrictions upon, the President.
Section 7. Secretary. The Secretary shall: (a) cause to be recorded and
maintained minutes of all meetings of the shareholders, the board of directors, and board
committees in one or more books provided for that purpose; (b) cause to be given all notices
required by resolution of the board of directors, the provisions of these Bylaws or law; (c) be
custodian of the corporate records of the corporation; (d) keep a register of the post office
address of each shareholder and director which shall be furnished to the Secretary by such
shareholder or director; (e) have general charge of the stock transfer books of the corporation;
and (f) in general, perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to him by the President or by the board of directors.
Section 8. Treasurer. The Treasurer shall cause to be kept in books belonging
to the corporation a full and accurate account of all receipts, disbursements, and other financial
transactions of the corporation. The Treasurer shall perform other duties that the President
assigns or the board prescribes.
Section 9. Assistant Secretaries and Assistant Treasurers. An Assistant
Secretary or an Assistant Treasurer may perform any duty or exercise any authority of the Secretary
or Treasurer, respectively. An Assistant Secretary or Assistant Treasurer also shall perform duties
that the Secretary or the Treasurer, respectively, or the President assigns or that the board
prescribes.
Section 10. Other Officers. The board of directors may appoint other officers
to perform duties and exercise authority that the President assigns or the board prescribes.
Section 11. Compensation. The board of directors shall fix the compensation of
the officers of the corporation. No officer shall be prevented from receiving such compensation by
reason of the fact that he is also a director of the corporation.
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ARTICLE V
INDEMNIFICATION
Section 1. Indemnification in Action by Third Party. The corporation may
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit, or proceeding (other than an action by or in the right of the
corporation), whether civil, criminal, administrative, or investigative and whether formal or
informal, by reason of the fact that the person is or was a director, officer, employee, or agent
of the corporation or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint
venture, trust, or other enterprise, whether for profit or not for profit, against expenses
(including attorney fees), judgments, penalties, fines, and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit, or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation or its shareholders and, with respect to a criminal action or
proceeding, the person had no reasonable cause to believe his or her conduct was unlawful. The
termination of an action, suit, or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the
person did not act in good faith and in a manner that the person reasonably believed to be in or
not opposed to the best interests of the corporation or its shareholders and, with respect to a
criminal action or proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Section 2. Indemnification in Action by or in Right of the Corporation. The
corporation may indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending, or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was a director,
officer, employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, or other enterprise, whether for profit or
not for profit, against expenses, including attorney fees and amounts paid in settlement actually
and reasonably incurred by the person in connection with the action or suit, if the person acted in
good faith and in a manner the person reasonably believed to be in or not opposed to the best
interests of the corporation or its shareholders. Indemnification shall not be made for a claim,
issue, or matter in which the person shall have been found liable to the corporation except to the
extent authorized by statute.
Section 3. Expenses. To the extent that a director, officer, employee, or
agent of the corporation has been successful on the merits or otherwise in defense of an action,
suit, or proceeding referred to in Section 1 or 2 of this Article, or in defense of a claim, issue,
or matter in the action, suit, or proceeding, the corporation shall indemnify that person against
actual and reasonable expenses, including attorney fees that person incurred in connection with the
action, suit, or proceeding and an action, suit, or proceeding brought to enforce the mandatory
indemnification provided in this Section.
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Section 4. Authorization of Indemnification.
(a) An indemnification under Section 1 or 2 of this Article, unless ordered by a court,
may be made by the corporation only as authorized in the specified case upon a determination
that indemnification of the director, officer, employee, or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article and upon an evaluation of the reasonableness of expenses and
amounts paid in settlement. This determination and evaluation may be made in any of the
following ways:
(1) By a majority vote of a quorum of the board of directors consisting of
directors who are not parties or threatened to be made parties to the action, suit,
or proceeding.
(2) If a quorum cannot be obtained under Subsection (1) above, by majority
vote of a committee duly designated by the board and consisting solely of two or
more directors not at the time parties or threatened to be made parties to the
action, suit, or proceeding.
(3) By independent legal counsel in a written opinion, which counsel shall be
selected in one of the following ways:
(A) By the board or its committee in the manner prescribed in
Subsections (1) or (2) above.
(B) If a quorum of the board cannot be obtained under Subsection (1)
above and a committee cannot be designated under Subsection (2) above, by
the board.
(4) By all independent directors who are not parties or threatened to be made
parties to the action, suit, or proceeding.
(5) By the shareholders, but shares held by directors, officers, employees, or
agents who are parties or threatened to be made parties to the action, suit, or
proceeding may not be voted.
(b) In the designation of a committee under Subsection (a)(2) or in the selection of
independent legal counsel under Subsection (a)(3)(B), all directors may participate.
(c) If a person is entitled to indemnification under Section 1 or 2 for a portion of
expenses, including reasonable attorney fees, judgments, penalties, fines,
12
and amounts paid in settlement, but not for the total amount, the corporation may indemnify
the person for the portion of the expenses, judgments, penalties, fines, or amounts paid in
settlement for which the person is entitled to be indemnified.
Section 5. Advances. The corporation may pay or reimburse the reasonable
expenses incurred by a director, officer, employee, or agent who is a party or threatened to be
made a party to an action, suit, or proceeding before final disposition of the proceeding if all
of the following apply:
(a) The person furnishes the corporation a written affirmation of the persons good
faith belief that he or she has met the applicable standard of conduct set forth in Section
1 or 2 of this Article.
(b) The person furnishes the corporation a written undertaking, executed personally or
on the personss behalf, to repay the advance if it is ultimately determined that the
person did not meet the standard of conduct.
(c) A determination is made that the facts then known to those making the
determination would not preclude indemnification under this act.
The undertaking required by Subsection (b) above must be an unlimited general obligation of
the person but need not be secured. Determinations of payments under this Section shall be made in
the manner specified in Section 4.
Section 6. Other Indemnification Agreements. The indemnification or
advancement of expenses provided by this Article is not exclusive of any other rights to which a
person seeking indemnification or advancement of expenses may be entitled under the articles of
incorporation, these bylaws, or a contractual agreement. The total amount of expenses advanced or
indemnified from all sources combined may not exceed the amount of actual expenses incurred by the
person seeking indemnification or advancement of expenses. The indemnification provided in Sections
1 to 6 of this Article continues as to a person who ceases to be a director, officer, employee, or
agent and shall inure to the benefit of the persons heirs, executors, and administrators.
Section 7. Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee, or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against the person and incurred by the person in any such capacity
or arising out of the persons status as such, whether or not the corporation would have power to
indemnify the person against the liability under Sections 1 to 6 of this Article.
Section 8.
Constituent Corporation. For the purposes of this Article, corporation
includes all constituent corporations absorbed in a consolidation or merger and the resulting or
13
surviving corporation, so that a person who is or was a director, officer, employee, or agent
of the constituent corporation or is or was serving at the request of the constituent corporation
as a director, officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise whether for profit or not shall
stand in the same position under the provisions of this Article with respect to the resulting or
surviving corporation as the person would if the person had served the resulting or surviving
corporation in the same capacity.
ARTICLE VI
SHARE CERTIFICATES AND TRANSFERS
Section 1. Share Certificates: Required Signatures. Except as
otherwise required by the articles of incorporation or these bylaws and permitted by statute,
shares of the corporations stock shall be represented by certificates. Each certificate must be
signed by one of the following: the Chairperson, a Vice Chairperson, the President, or a Vice
President. Share certificates may be sealed with the seal of the corporation or a facsimile of the
seal. The signatures of the officers may be facsimiles if the certificate is countersigned by a
transfer agent or registered by a registrar other than the corporation itself or its employee. The
corporation may issue a certificate even though the officer who has signed or whose facsimile
signature has been placed upon the certificate ceases to be an officer before the certificate is
issued.
Section 2. Replacement of Certificates. The corporation shall issue a new
certificate for shares in place of a certificate alleged to have been lost or destroyed. The board
of directors may require the owner of the lost or destroyed certificate, or his legal
representative, to give the corporation a bond or other security sufficient to indemnify the
corporation against any claim that may be made against it on account of the lost or destroyed
certificate or the issuance of a replacement certificate.
Section 3. Registered Shareholders. The corporation may treat the registered
holder of a share as the absolute owner of the share and shall not be bound to recognize any
equitable interest in or other claim to the share by any other person, whether or not the
corporation has actual notice of the interest or claim, except as otherwise provided by law.
Section 4. Transfer Agent and Registrar. The board of directors may appoint a
transfer agent and a registrar for the transfer and registration of its securities.
Section 5. Transfer of Shares. A sale, assignment, exchange, conveyance, gift,
pledge, hypothecation, or other transfer of shares of the corporations stock, whether by operation
of law or otherwise, shall not be effective as to the corporation until recorded on the
corporations stock transfer books.
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ARTICLE VII
GENERAL PROVISIONS
Section 1.
Dividends or Other Distributions. By action of the board of directors, the
corporation may declare and pay dividends or make other distributions as permitted by law.
Section 2. Voting of Securities. Unless the board directs otherwise, the
Chairperson or the President, or, during their absence or disability, the Vice Presidents in the
order that the board designates, may on behalf of the corporation attend and vote (or execute in
the name or on behalf of the corporation a consent in writing in lieu of a meeting of shareholders
or a proxy authorizing an agent or attorney-in-fact for the corporation to attend and vote) at any
meeting of security holders of any corporation in which the corporation holds securities. At such
meetings such person may exercise all rights incident to the ownership of such securities which the
corporation might exercise if present. The board may confer this voting power upon any other
person.
Section 3. Checks. The corporations checks, drafts, and orders for the
payment of money shall be signed in the name of the corporation in the manner and by the persons
that the board of directors designates.
Section 4.
Signing of Instruments. When the board or these bylaws authorize
the signing of a contract, conveyance, or other instrument without specification of the signing
officer, the Chairperson, the President, any Vice President, the Secretary, or the Treasurer may
sign in the name and on behalf of the corporation and may affix the corporate seal to the
instrument. The board may authorize other officers and agents to sign instruments in the name and
on behalf of the corporation.
Section 5. Loans. No loans shall be contracted on behalf of the corporation
and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of
the board of directors. This authority may be general or confined to specific instances. No loan or
advance to, overdraft, or withdrawal by an officer, director, or shareholder of the corporation,
other than in the ordinary and usual course of the business of the corporation and on the ordinary
and usual terms of payment and security, shall be made or permitted, unless: (a) each such
transaction shall be approved by a vote of two-thirds (2/3) of the members of the board of
directors (excluding any director involved in such transaction); (b) a full and detailed statement
of all such transactions and any payments shall be submitted at the next annual meeting of
shareholders; and (c) the aggregate amount of such transactions less any repayments shall be stated
in the next annual report to shareholders.
Section 6. Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such depositories as the board
of directors may select. Endorsements for deposits shall be made by the President, the Treasurer,
or such other officers or agents designated by the board of directors.
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Section 7. Corporate Books and Records. The corporation shall keep books and
records of account and minutes of the proceedings of its shareholders, board of directors, and
executive committee, if any. The books, records, and minutes may be kept outside the State of
Michigan. The corporation shall keep at its registered office, or at the office of its transfer
agent within or without the State of Michigan, records containing the names and addresses of all
shareholders, the number, class and series of shares held by each, and the dates when they
respectively became holders of record. Any of the books, records, or minutes may be in written form
or in any other form capable of being converted into written form within a reasonable time. The
corporation shall convert into written form without charge any record not in written form, unless
otherwise requested by a person entitled to inspect the record.
Section 8. Seal. The corporation may have a seal in the form that the board of
directors determines. The seal may be used by causing it or a facsimile to be affixed, impressed,
or reproduced.
Section 9. Fiscal Year. The fiscal year of the corporation shall be as
determined by the board of directors.
ARTICLE VIII
AMENDMENTS
The shareholders or the board of directors may amend or repeal these bylaws or adopt new
bylaws, unless the articles of incorporation or these bylaws provide that the power to adopt new
bylaws is reserved exclusively to the shareholders or that the board may not alter or repeal these
bylaws or any particular bylaw. Amendment of these bylaws by the board requires the vote of a
majority of the directors then in office.
CERTIFICATE
The undersigned, being the Secretary of G. Van Dyken Disposal Inc., hereby certifies that the
foregoing By-Laws were duly adopted by the Incorporators as of June 28, 1991, which adoption the
Board of Directors of the Corporation ratified by written consent on even date therewith.
Dated at Hudsonville, Michigan as of the 28th day of June, 1991.
/s/ Gerald Van Dyken
Gerald Van Dyken, Secretary
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exv3w511
Exhibit 3.511
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GALVESTON COUNTY LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The name of the limited partnership is Galveston County Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Galveston County Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation,
its General Partner |
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White |
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Title:
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Secretary |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 04:00 PM 12/12/2001 |
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010637022 3467835 |
exv3w512
Exhibit 3.512
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
GALVESTON COUNTY LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Galveston County TX, LP (the First
Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste Landfill
Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste Systems
Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Galveston County Landfill TX, LP (the Limited Partnership) was formed as a Delaware
limited partnership pursuant to that certain Certificate of Limited Partnership filed with the
Delaware Secretary of State on December 12, 2001, and the related Agreement of Limited Partnership
of Galveston County Landfill TX, LP, dated as of December 12, 2001 (the Agreement) between AWLH
and BFI Waste Systems of North America, Inc., a Delaware corporation (BFINA). Unless specifically
defined herein, capitalized terms appearing in this First Amendment shall have the meanings given
those terms in the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the Partnership to
AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited partner
of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby consents
to (a) the transfer described in Recital B above of BFINAs interest in the Partnership to AWSH and
(b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all terms
and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc., a
Delaware corporation General Partner |
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By:
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/s/ Jo Lynn White |
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc., a
Delaware corporation Limited Partner |
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By:
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/s/ Jo Lynn White |
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Jo Lynn White, Secretary |
-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste Systems Holdings, Inc. |
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99 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc. |
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1 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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TOTAL |
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100 |
% |
-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
GALVESTON COUNTY LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and BFI WASTE
SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Galveston County Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are
reasonably necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of the State of Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon the
unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
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2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests at
such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4, in any
manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may rely
upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right, during
ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer that does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases
to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no General
Partner, any Limited Partner may nominate one or more Persons for election as General Partner,
which Person or Persons shall have the right and the power to continue the Partnership and its
business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General
Partners cease to be General Partners pursuant to Section 9.1 hereof and no Person
named as a successor General Partner in Section 9.3 hereof is then serving as the General
Partner.
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10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and items thereof
of the Partnership for the taxable year in which the liquidation of the Partnership occurs shall be
allocated among the Partners so as to adjust the Capital Accounts of the Partners as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in
this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this
Agreement, or (c) to supersede or modify in any manner any provision of Section 8
hereof.
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11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White |
Its:
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Secretary
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner: |
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Limited Partner: |
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$ |
990.00 |
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99 |
% |
BFI Waste Systems of North America, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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exv3w513
Exhibit 3.513
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OFFICE OF SECRETARY OF STATE
CORPORATIONS DIVISION
315 West Tower, #2 Martin Luther King, Jr. Drive
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WARREN RARY |
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Atlanta, Georgia 30334-1530
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Director |
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(404) 656-2817 |
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Registered agent, officer, entity status information via the Internet
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QUINTILIS B. ROBINSON |
CATHY COX
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http://www.sos.state.ga.us/corporations
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Deputy Director |
Secretary of State
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TRANSMITTAL INFORMATION |
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GEORGIA LIMITED LIABILITY
COMPANY |
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DO NOT
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DOCKET #
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PENDING #
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CONTROL # |
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DOCKET
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DATE
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AMOUNT
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CHECK/ |
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CODE
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FILED
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RECEIVED
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RECEIPT # |
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TYPE CODE
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EXAMINER
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JURISDICTION (COUNTY) CODE |
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NOTICE TO APPLICANT: PRINT PLAINLY OR TYPE REMAINDER OF THIS FORM
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1.
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021430394 |
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LLC Name Reservation Number
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Gateway Landfill, LLC |
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LLC Name |
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2.
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CT Corporation System |
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Applicant/Attorney
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Telephone Number
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1201 Peachtree Street, N.E.
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Address |
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Atlanta
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Georgia
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30361 |
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3.
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15880 N. Greenway-Hayden Loop, Suite 100
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Principal Office Mailing Address
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Scottsdale
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Arizona
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85260 |
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4.
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Corporation Process Company
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Name of Registered Agent in Georgia
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c/o Corporation Process Company, 180 Cherokee Street, N.E.
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Registered Office Street Address in Georgia
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Marietta
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Cobb
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GA
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30060 |
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5.
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Name and Address of each organizer (Attach additional sheets if necessary)
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Jo Lynn White
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15880 N. Greenway-Hayden Loop
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Scottsdale
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Arizona
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85260 |
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Organizer
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Organizer
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6.
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Mail or deliver to the Secretary of State, at the above address, the following:
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1) This transmittal form
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2) Original and one copy of the Articles of Organization
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3) Filing fee of $75.00 payable to Secretary of State. Filing fees are NON-refundable.
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/s/ Jo Lynn White |
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July 17, 2002 |
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Authorized Signature |
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Date
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Member, Manager,
Organizer or Attorney-in-fact (Circle one)
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ARTICLES OF ORGANIZATION OF
GATEWAY LANDFILL, LLC |
I.
The name of the Limited Liability Company is Gateway Landfill, LLC.
II.
Management of the Limited Liability Company is vested in one or more officers whose
names and addresses are as follows.
Donald W. Slager, Executive Vice President
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
Terrance Brotherton, President
7111 Old Millington Road
Millington, Tennessee 38083
Dale L. Parker, Vice President
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
Thomas P. Martin, Treasurer
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
Jo Lynn White, Secretary
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
Randall Arnold, Vice President
3950 50th SW
Birmingham, Alabama 35221
Bill Bucher, Assistant Secretary
7111 Old Millington Road
Millington, Tennessee 38083
Jenny L. Apker, Assistant Secretary
15880 N. Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
This 17th day of July, 2002.
SECRETARY OF STATE
2002 JUL 18 P 2:44
CORPORATIONS DIVISION
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/s/ Jo Lynn White
Jo Lynn White
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Organizer |
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ARTICLES OF CORRECTION
TO THE
ARTICLES OF ORGANIZATION
OF
GATEWAY LANDFILL, LLC
Pursuant to Section 14-11-211 of the Georgia Limited Liability Company Act, Gateway
Landfill, LLC, a Georgia limited liability company (the Company) hereby submits the following
Articles of Correction:
1. Articles of Organization of the Company were filed with the Georgia
Secretary of State on July 18, 2002, a copy of which is attached hereto as Exhibit A
(the
Articles of Organization).
2. Due to a clerical error, Article II is incorrect in its entirety because the
management of the Company is vested in the members and not the officers of the
Company.
3. The Articles of Organization are hereby corrected by deleting the text of
Article II in its entirety and substituting new text to read as follows:
The management of the limited liability company is vested in the members.
IN WITNESS WHEREOF, the undersigned, being the sole member of the Company, has caused these
Articles of Correction to be executed this 19th day of June, 2006.
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ALLIED WASTE NORTH AMERICA, INC. |
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By:
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/s/ Steven M. Helm
Name: Steven M. Helm
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Title: Vice President Legal |
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exv3w514
Exhibit 3.514
AMENDED AND RESTATED OPERATING AGREEMENT OF
GATEWAY LANDFILL, LLC
This Operating Agreement is executed as of June 19th, 2006, by Allied
Waste North America, Inc., a Delaware corporation (the Member) as the sole member of the
Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1. Definitions. Capitalized words and phrases used in this Agreement shall have
the meanings set forth in Section 8.7 hereof.
1.2. Formation. The parties formed the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Articles of Organization, as corrected.
1.3. Name. The name of the Company is Gateway Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4. Purpose. The purpose of the Company is to engage in and conduct the business of
solid waste management and disposal, and to engage in any other business or activity permitted
under the Act and the laws of any jurisdiction in which the Company may do business.
1.5. Intent. It is the intent of the Member that the Company be treated as a
separate entity for state law purposes, but be disregarded as an entity and operated in a manner
consistent with its treatment as a division of the Member for federal and state income tax
purposes. It also is the intent of the Member that the Company not be operated or treated as a
partnership for purposes of Section 303 of the federal Bankruptcy Code.
1.6. Office. The registered office of the Company within the State of Georgia shall
be CT Corporation System, 1201 Peachtree St., N.E., Atlanta, Georgia. The registered office may
be changed to any other place within the State of Georgia upon the consent of the Member. The
Company may maintain a registered office in any state within which it does business at any
location approved by the Member.
1.7. Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Georgia are Corporation Process Company, 180
Cherokee Street, N.E. Marietta, Georgia. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.8. Term. The term of the Company shall commence on the date the Articles of
Organization are filed in Georgia, and shall continue in perpetuity until the Company is dissolved
as set forth in this Agreement.
1.9. Articles of Organization. The Member shall cause Articles of Organization to be
filed in the State of Georgia. The Member shall file any amendments or corrections to the
Articles of Organization deemed necessary or appropriate by it to, among other matters, reflect
amendments to this Agreement adopted by the Member in accordance with the terms hereof.
Upon the approval of the Articles of Organization, or any amendments or corrections thereto, by
the Member in accordance with this Agreement, the Member or a designee of a Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1. Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2. Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3. Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4. Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Section 2.2 hereof and shall not be
required to make any other Capital Contributions or loans to the Company.
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5. Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1. General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
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5.2. Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3. Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, intentional misconduct, knowing violation of
law, gross negligence or any transaction for which the person received a personal benefit in
violation or breach of any provision of this Agreement.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1. Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2. Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment,
encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1. Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 14-11-603 of the Act,
7.2. Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof the Member may participate in the winding up of the Company as provided in Section
14-11-604 of the Act. The Company shall cease to carry on its business, except insofar as may be
necessary for the winding up of its business, but the Companys separate existence shall continue
until a certificate of termination has been filed with the Georgia Secretary of State or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
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(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of and the establishment of any necessary reserves for all
of the Companys debts and liabilities, including known and unknown claims in accordance with
Sections 14-11-607 and 14-11-608 of the Act, and further including those debts and liabilities to
the Member as a creditor, to the extent permitted by law;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3. Certificate of Termination. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, a
certificate of termination shall be executed and filed by the Member with the Georgia Secretary of
State.
SECTION 8. MISCELLANEOUS
8.1. Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2. Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3. Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4. Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
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8.6. Georgia Law. The laws of the State of Georgia shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
8.7. Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Georgia Limited Liability Company Act, as set forth in Official Code of
Georgia Ann. Tit. 14, § 14-11-100, et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Articles of Organization has the meaning given that term in Section 1.9 hereof.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a substituted or additional member pursuant to the terms of this Agreement,
Member shall also be deemed to refer to such Person. Member refers collectively to all Persons
who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less the
portion thereof used to pay or establish reserves for Company expenses, debt payments (including
payments on Member Loans), capital improvements, replacements and contingencies, all as determined
by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
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Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the Member has entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC., |
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a Delaware corporation |
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By:
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/s/ Steven M. Helm
Steven M. Helm, Vice President Legal
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6
EXHIBIT A
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Name and Address of the Member
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Initial Capital Contribution |
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Allied Waste North America, Inc.
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$100.00 |
15880 N. Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w515
Exhibit 3.515
ARTICLES OF INCORPORATION
OF
GEK, INC.
The undersigned, for the purpose of forming a corporation under the Alabama Business
Corporation Act, hereby adopts the following Articles of Incorporation:
ARTICLE I
The name of the corporation is GEK, Inc.
ARTICLE II
The term of the existence of the corporation is perpetual.
ARTICLE III
The objects for which the corporation is formed are to do and perform any and all
things hereinafter set forth to the same extent that natural persons might or could do:
(a) To develop and operate a sanitary solid waste disposal facility. Reference to said
facility shall not constitute a limitation to the operation of same; and to do and perform all acts
or things incidental to the carrying on of said business;
(b) The corporation shall have the full power to borrow money from any person, firm or
corporation; to make and issue notes, bills and other evidence of indebtedness and to secure the
payment of same by mortgage, deposit of cash or otherwise and to do any and all things set forth in
this certificate as the objects purposes and powers within the scope of the business herein
designated and described;
Judge of Ptobate 35:00
Secretary of State 50:00
(c) The corporation shall have the full power to engage in activities relative to the
operation of a sanitary solid waste disposal facility to the extent authorized and permitted by
the laws of this State, to engage, employ and supervise such employees necessary therefor, and to
the extent authorized by the laws of this State to do all things necessary and convenient for the
general operation of such business, including the right to employ persons for the operation of
such business;
(d) The corporation shall have the full power to own, lease and dispose of real estate and
such other property which corporations may own;
(e) The corporation shall have the full power and authority to purchase, hold, sell and
transfer the shares of its own capital stock; provided that it shall not use its funds or property
for the purpose of acquiring its own shares of said capital stock when such use would cause any
impairment of its capital, except as otherwise permitted by law, and provided further that shares
of its capital stock belonging to it shall not be voted upon directly or indirectly;
(f) The corporation shall have the full power and authority to do any and all acts or things
necessary or convenient to carry out the general objectives or purposes of its power, including but
not limited to, the operation of a sanitary solid waste disposal facility and to do all things or
acts authorized by the general laws of the State of Alabama
regulating the activities of corporations in general.
The objects herein set forth, shall, except where otherwise expressed, be in no way limited
or restricted by reference to or inference from the terms of any particular clause or paragraph
hereof, but the objects, purposes and powers specified in each of the clauses and paragraphs
hereof shall be regarded as independent objects, purposes and powers, and shall be construed as
objects, purposes and powers and the enumeration thereof shall not be held to limit or restrict in
any manner, the general powers now or hereafter conferred on this corporation by the laws of the
State of Alabama.
ARTICLE IV
The name and address of the initial registered agent of
the corporation is:
Glen Kilgore
P. O. Drawer 1099
Main Street, East
Rainsville, AL 35986
ARTICLE V
The aggregate number of shares that the corporation has
authority to issue is 1000, all of which shall be common shares
with a par value of One Dollar ($1.00).
ARTICLE VI
Before there can be a valid sale or transfer of any of the common shares to the corporation
by any holder thereof, such holder shall first offer said shares to the corporation and then to
the other holders of common shares in the following manner:
(a) Such offering shareholder shall deliver a notice in writing by mail or otherwise to the
Secretary of the corporation stating the price, terms and conditions of such proposed sale or
transfer, the number of shares to be sold or transferred, and his
intention to so sell or transfer such shares. Within ten (10) days thereafter, the corporation
shall have the prior right to purchase such shares so offered at the price and on the terms and
conditions stated in the notice; provided, however, that the corporation shall not at any time be
permitted to purchase all of its outstanding voting shares. Should the corporation fail to purchase
the shares at the expiration of the ten (10) day period, or prior thereto decline to purchase the
shares, the Secretary of the corporation shall, within five (5) days thereafter, mail or deliver to
each of the other common shareholders of record a copy of the notice given by the shareholder to
the Secretary. Such notice may be delivered to the shareholders personally, or may be mailed to
them at their last known address as such address may appear on the books of the corporation. Within
ten (10) days after the mailing or delivering of the copies of the orders to the shareholders any
such shareholder or shareholders desiring to acquire any part or all of the shares referred to in
the notice shall deliver by mail, or otherwise, to the Secretary of the corporation a written offer
or offers, expressed to be acceptable immediately, to purchase a specified number of such shares at
the price and on the terms stated in the notice. Each such offer shall be accompanied by the
purchase price therefor with authorization to pay such price against delivery of the shares;
b) If the total number of shares specified in the
offers to purchase exceeds the number of shares to be sold or transferred, each offering shareholder
shall be entitled to
purchase such proportion of such shares as the number of shares of the corporation which he
holds bears to the total number of shares held by all shareholders desiring to purchase the
shares;
(c) If all the shares to be sold or transferred are not disposed of under such apportionment,
each shareholder desiring to purchase shares in a number in excess of his proportionate share, as
provided above, shall be entitled to purchase proportion of those shares which remain thus
undisposed of as the total number of shares which remain thus undisposed of as the total number of
shares which he holds bears to the total number of shares held by all of the shareholders
desiring to purchase shares in excess of those to which they are entitled under such
apportionment;
(e) If within said ten (10) day period, the offer or offers to purchase aggregate less than
the number of shares to be sold or transferred, the shareholder desiring to sell or transfer such
shares shall not be obligated to accept any such offer or offers as may dispose of all of the
shares referred to in his notice to any person or persons whomsoever; provided, however, that he
shall not sell or transfer such shares at a lower price or on terms more favorable to the
purchaser or transferee that those specified in his notice to the Secretary of the corporation;
(f) The certificates issued by the corporation evidencing ownership of shares of common stock
shall bear a notation of this restriction on the transfer of stock on the corporation and shall
refer to these Articles of Incorporation of details of this
restriction.
ARTICLE VII
Each common shareholder of the corporation shall be entitled to full preemptive rights to
acquire his or her proportional part of any unissued or treasury shares of the corporation, or
securities of the corporation convertible into or carrying a right to subscribe to or acquire
shares, which may be issued at any time by the corporation.
ARTICLE VIII
The name and post office address of the initial member
of the Board of Directors chosen for the first year and until
his respective successors are elected and qualified is:
Glen Kilgore
P.O. Box 1099
Main Street, East
Rainsville, AL 35986
ARTICLE IX
The name and address of the incorporator is:
Glen Kilgore
P.O. Drawer 1099
Main Street, East
Rainsville, AL 35986
ARTICLE X
The name and post office address of the officers for the
first year is:
Glen
Kilgore President / Sec. / Tres.
P.O. Box 1099
Main Street, East
Rainsville, AL 35986
ARTICLE XI
Any
action required or permitted to be taken at any meeting of the Board of Directors or any
committee thereof may be taken without a meeting if a written consent thereof is
applicable,
and if such written consent is filed with the minutes of proceedings of the Board
of Committee.
I,
the undersigned, being the incorporator subscribe my name this the
26th day of
November 1991.
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/s/ Glen Kilgore
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GLEN KILGORE |
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STATE OF ALABAMA
[ILLEGIBLE]
The
undesigned authority a Notary Public in and [ILLEGIBLE] said State,
in said County, hereby certify that GLEN KILGORE whose name is
signed to the [ILLEGIBLE] Articles of Incorporation acknowledged
before me on this day, that being informed of the contents he signed
the same voluntarily on the day the same bears date.
Given
under my hand and seal this the 26th day of November 1991.
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/s/
[ILLEGIBLE]
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NOTARY PUBLIC
Commission expires: [ILLEGIBLE] |
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[ILLEGIBLE]
[ILLEGIBLE]
Paul
Thomas
JUDGE OF PROBATE
CORP 7 Pg 74-75
99 JUN 28 AM 11:49
STATE OF ALA DEKLB CO.
I CERTIFY THIS
[ILLEGIBLE]
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
GEK, INC.
Pursuant to the provisions of Section 10-2B-10.06 of the Alabama Business Corporation Act,
GEK, Inc., an Alabama corporation hereby adopts the following Articles of Amendment to its
Articles of Incorporation:
I.
The name of the corporation is GEK, Inc. (the Corporation).
II.
Article VI of the Articles of Incorporation is hereby
deleted in its entirety.
III.
The Articles of Amendment to the Articles of Incorporation were duly adopted by unanimous
consent of the Board of Directors of the Corporation and submitted to the shareholders for
adoption on May 31, 1999.
IV.
The Articles of Amendment to the Articles of Incorporation were duly adopted in the manner
prescribed by Section 10-2B-10.03 of the Alabama Business Corporation Act by the shareholders of
the Corporation on May 31, 1999.
V.
The number of shares outstanding at the time of adoption of the Articles of Amendment and
entitled to vote was One Thousand (1,000) shares of Common Stock, par value $1.00 per share.
The total number of votes cast for the Amendment was One Thousand (1,000) shares of Common
Stock, par value $1.00 per share. There were no votes cast against the Amendment.
RECEIVED
JUL - 1 - 1999
Judge of
Probate 10:00
IN WITNESS WHEREOF, the undersigned has signed these Articles of Amendment this 31st
day of May, 1999.
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GEK. INC. |
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By: |
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/s/ R. C. Etherton |
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Its: |
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President |
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STATE OF ALABAMA
DeKALB-COUNTY
I, PAUL THOMAS, Judge of Probate of DeKalb County,
Alabama certifies that this is a true and correct
copy of this instrument recorded in
CORP Record 7 Page 74-75
this the 28TH day of June 1999
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/s/ Paul Thomas
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Judge of Probate |
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exv3w516
Exhibit 3.516
AMENDED AND RESTATED BYLAWS
OF
GEK, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and
the purpose or purposes for which the meeting is called shall be given not less than ten
1
(10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting to each stockholder entitled to vote at
such meeting. Business transacted at all Special Meetings shall be confined to the objects stated
in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of
Directors. The Corporations Secretary shall act as secretary of each meeting of the stockholders;
in the Secretarys absence, the chairman of the meeting may appoint any person (whether a
stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his
part, and subject to any state law restrictions or requirements, the chairman of a meeting shall,
among other things, have absolute authority to fix the period of time allowed for the registration
of stockholders and the filing of proxies, to determine the order of business to be conducted at
such meeting and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his
3
successor shall be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Directors of the Corporation may be removed
from the Board of Directors, with or without cause, subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
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Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the
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disinterested directors, even though the disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if
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present. The Board of Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of
the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision
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he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there is no
Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there is one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as
8
shall be satisfactory to the Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property of whatever kind
in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
9
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
11
with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person (a) did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, (b) with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section
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3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article
VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article
VIII shall
13
not be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w517
Exhibit 3.517
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/25/1998
981116692 2873831
CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation is:
General Refuse Rolloff Corp.
SECOND: The address of the corporations registered office in the State of Delaware in 1013
Centre Road, in the City of Wilmington, County of New Castle. The name of its registered agent at
such address is Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall have authority to
issue is 1,000 shares of Common Stock of the par value of $.01 per share.
FIFTH: The name and mailing address of the incorporator are: Cindy Sabish, Kirkpatrick &
Lockhart LLP, 1500 Oliver Building, Pittsburgh, Pennsylvania 15222.
SIXTH: The corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the board of
directors is expressly authorized to adopt, amend or repeal the by-laws of the corporation.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware, as the
by-laws may provide. The books of the corporation may be kept (subject to any provision contained
in the statutes) outside the State of Delaware at such place or places as may be designated from
time to time by the board of directors or in the by-laws of the corporation. Elections of directors
need not be by written ballot unless the by-laws of the corporation shall so provide.
NINTH: The corporation reserves the right to amend, alter, change or repeal any provision
contained in this certificate of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
TENTH: The corporation shall indemnify, to the fullest extent now or hereafter permitted by
law, each director or officer of the corporation who was or is made a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or was an authorized
representative of the corporation, against all expenses (including attorneys fees and
disbursements), judgments, fines (including excise taxes and penalties) and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding.
A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, provided however,
that this provision shall not eliminate or limit the liability of a director to the extent that
such elimination or limitation of liability is expressly prohibited by the Delaware General
Corporation Law as in effect at the time of the alleged breach of duty by such director.
Any repeal or modification of this Article by the stockholders of the corporation shall not
adversely affect any right or protection existing at the time of such repeal or modification to
which any person may be entitled under this Article. The rights conferred by this Article shall not
be exclusive of any other right which the corporation may now or hereafter grant, or any person may
have or hereafter acquire, under any statute, provision of this Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or otherwise. The rights
conferred by this Article shall continue
as to any person who has ceased to be a director or officer of the corporation and shall inure to
the benefit of the heirs, executors and administrators of such person.
For the purposes of this Article, the term authorized representative shall mean a director,
officer, employee or agent of the corporation or of any subsidiary of the corporation, or a trustee,
custodian, administrator, committeeman or fiduciary of any employee benefit plan established and
maintained by the corporation or by any subsidiary of the corporation, or a person who is or was
serving another corporation, partnership, joint venture, trust or other enterprise in any of the
foregoing capacities at the request of the corporation.
THE UNDERSIGNED, being the incorporator named above, for the purposes of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, does make this certificate,
hereby declaring and certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 25th day of March, 1998.
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/s/ Cindy Sabish
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Cindy Sabish, Incorporator |
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RESERVATION NO. 2873831
- 2 -
exv3w518
Exhibit 3.518
AMENDED AND RESTATED BYLAWS
OF
GENERAL REFUSE ROLLOFF CORP.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
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officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w519
Exhibit 3.519
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Prescribed by J. Kenneth Blackwell
Please obtain fee amount and mailing instructions
from the Forms
Inventory list (using the 3 digit form # located at the bottom of this form).
To obtain the
Forms Inventory List or for assistance, please call Customer Service:
Central Ohio: (6l4)466-3910 Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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Expedite this form
þ Yes |
ARTICLES OF ORGANIZATION
(Under Section 1705.04 of the Ohio Revised Code)
Limited Liability Company
The undersigned, desiring to form a limited liability Company, under Chapter 1705 of the Ohio
Revised Code, do hereby state the following:
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FIRST:
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The name of said limited liability company shall be: |
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General Refuse, Service of Ohio, L.L.C. |
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(the name must include the words limited liability company, limited, Ltd., Ltd., LLC, or L.L.C.) |
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SECOND:
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This limited liability company
shall exist for a period of Perpetual
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THIRD: The address to which interested persons may direct requests for copies of any
operating agreement and any bylaws of this limited liability company is:
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1300 East 9th Street |
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(street address or post office box) |
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Cleveland
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Ohio
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44114 |
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(city, village, or township)
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(state)
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(zip code)
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o Please check this box if additional provisions are attached hereto
Provisions attached hereto are incorporated herein and made a part of these articles of
organization.
RECEIVED
SECRETARY OF STATE
2001 JAN-4 PM 4:22
CLIENT SERVICE CENTER
Page 1 of 7
J. Kenneth Blackwell
Secretary of State
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FOURTH:
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Purpose (optional) |
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IN WITNESS WHEREOF, we have hereunto subscribed our names on
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12-27-00 |
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(date)
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Signed
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/s/ Randie G. Lawson |
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Randie G. Lawson,
President of General Refuse Service of
Mason County,
Inc. Manager |
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Name
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General Refuse Service of Mason County, Inc. |
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Prescribed by J. Kenneth Blackwell |
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Expedite this Form: [ILLEGIBLE] |
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Ohio Secretary of State
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[ILLEGIBLE] |
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Central Ohio: (614) 466-3910
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PO Box 1390 |
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Toll Free: 1-877-SOS-FILE (1-877-767-3453) |
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Columbus, OH 43216 |
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*** Requires an additional fee of $100 *** |
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www.state.oh.us/sos
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PO Box 1028 |
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e-mail: busserv@sos.state.oh.us
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Columbus, OH 43216 |
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Limited Liability Company Certificate of
Amendment / Restatement / Correction
(Domestic or Foreign)
Filing Fee $50.00
(CHECK ONLY ONE (1) BOX)
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(1) |
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Domestic Limited Liability Company |
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(2) Foreign Limited Liability Company |
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þ Amendment (129.LAM) |
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o Correction (135-LFC) |
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o Restatement (142.LRA) |
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01/04/2001
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(Date of Organization) |
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(Home
State)
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(Qualifying in Ohio on MM/DD/YY) |
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The undersigned authorized representative of
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General Refuse Service of Ohio, L.L.C.
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1202367 |
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(Name)
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(Registration Number) |
The above stated Limited Liability Company does hereby certify that the undersigned is duly
authorised to execute this
certificate, and hereby certifies that the above named Limited
Liability company the following:
þ
Amend o Restate
o Correct
[ILLEGIBLE]
Complete the information in this section if box (1) Restatement is checked, all sections
below must be completed. If box (1) Amendment or box (2) Correction is checked only
complete sections that applies.
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FIRST:
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The name of said limited liability company shall be: |
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(the name must include the words limited liability company, limited, Ltd., Ltd., LLC or
LLC) |
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SECOND:
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(OPTIONAL) This limited liability company shall exist for a period of
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THIRD:
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The address to which interested persons may direct requests for copies of any
operating agreement and any bylaws of this limited liability company is (OPTIONAL): |
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18500 North Allied Way |
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(street address)
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Phoenix
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AZ
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85054 |
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(city, township, or village)
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(state)
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(zip code) |
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o Please check if additional provisions attached hereto are incorporated herein and
made a part of these articles of organization.
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FOURTH:
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Purpose (OPTIONAL) |
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Last
Revised May 2002
Page 1 of 3
Complete the Information in this section if box (2) is cheeked and the Limited Liability Company
wants to appoint a statutory agent.
The limited liability company hereby appoints the following as its agent upon whom process against
the limited liability company may be served in the state of Ohio. The name and complete address of
the agent is:
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(Name) |
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(Street)
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NOTE- P.O. Box Addresses are Not acceptable. |
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Ohio |
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(City, Village or township)
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(State)
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(Zip Code) |
The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the
OHIO SECRETARY OF STATE if:
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the agent cannot be found or, |
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the limited liability company falls to designate another agent when required to do so,
or, |
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the limited liability companys registration to do business in Ohio expires or is
cancelled. |
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REQUIRED |
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Must be authenticated (signed)
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/s/ Ryan N. Kenigsberg
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11/6/2006 |
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by an authorized representative
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Authorized Representative
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Date |
(See Instructions)
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Ryan N. Kenigsberg, Attorney-In-Fact |
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Authorized Representative
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Date |
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Authorized Representative
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Date |
Last
Revised May 2002
Page 2 of 3
exv3w520
Exhibit
3.520
AMENDED AND RESTATED
OPERATING AGREEMENT
OF GENERAL REFUSE SERVICE OF OHIO, LLC
This Amended and Restated Operating Agreement (the Agreement) of GENERAL REFUSE SERVICE OF
OHIO, LLC (the Company) is executed as of December 1, 2008, by
BFI WASTE SYSTEMS OF NORTH AMERICA, LLC, a Delaware limited liability company, the sole member of
the Company (the Member), and shall bind the Member, the Company, and any other person who may
acquire any interest in the Company. This Agreement shall supersede and replace the Companys
Operating Agreement dated March 25, 2001, in its entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in
Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is GENERAL REFUSE SERVICE OF OHIO, LLC. All business
of the Company shall be conducted in the Company name. The Company shall hold its property in the
name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Ohio law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Ohio shall be CT
Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114. The registered office may
be changed to any other place within the State of Ohio upon the consent of the Member. The Company
may maintain a registered office in any state within which it does business at any location
approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Ohio are CT Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.7 Certificate of Formation. The Companys Articles of Organization were filed with
the Ohio Secretary of State on January 4, 2001, and were amended November 9, 2006 (the Articles of
Organization). The Member shall file any amendments to the Articles of Organization deemed
necessary to reflect amendments to this Agreement that the Member adopts in accordance with the
terms. Upon the approval of any amendments, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the sole Member are set forth
in Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member has contributed to the Company the cash or
other assets set forth in Exhibit A to this Agreement. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The
2
President shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
3
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 1705.47 of the Act.
6.2 Winding Up.
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(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Companys separate existence shall continue until a certificate of cancellation has been filed
with the Ohio Secretary of State or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor in
interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, the Member shall
execute and file a certificate of cancellation with the Ohio Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Ohio shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Rev. Code Ann. §
1705.01, et seg., as amended from time to time (or any corresponding provisions of succeeding law).
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Agreement means this Operating Agreement, as amended from time to time.
Articles
of Organization has the meaning given that term in
Section 1.7.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member
Loans has the meaning given that term in
Section 2.3.
Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first above
written.
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BFI Waste Systems of North America, LLC, a
Delaware limited liability company, its Sole Member
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By: |
/s/ Jo Lynn White
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Name: |
Jo Lynn White, Secretary |
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6
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
BFI Systems of North America, LLC |
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$ |
100.00 |
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100 |
% |
18500 North Allied Way |
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Phoenix, AZ 85054 |
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7
exv3w521
Exhibit 3.521
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STATE OF DELAWARE |
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SECRETARY OF STATE
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 03/23/1995 |
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950063705 2493292 |
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Prepared By: |
WERB, TIGANI, HOOD & SULLIVAN |
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300 DELAWARE AVE., 10TH FLOOR |
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P.O. Box 25046 |
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Wilmington, DE 19899 |
CERTIFICATE OF INCORPORATION
OF
GEORGIA RECYCLING SERVICES, INC.
FIRST:
The name of the corporation is Georgia Recycling Services,
Inc.
SECOND: The address of its registered office in the State of Delaware is Werb,
Tigani, Hood & Suillivan, 300 Delaware Avenue, 10th Floor, Wilmington, New Castle County,
State of Delaware. The name of its Registered Agent at such address is Brian A. Sullivan.
THIRD: The nature of the business or purpose to be conducted or promoted is
to engage in any lawful act or activity which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the corporation shall have
authority to issue is 1,000 shares of common stock without par value.
FIFTH: The name and mailing address of the incorporator is as follows:
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NAME |
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Brian A. Sullivan
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Werb, Tigani, Hood & Sullivan |
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300 Delaware Ave., 10th Floor |
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P. O. Box 25046 |
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Wilmington, DE 19899 |
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The Board of Directors is expressly authorized to make, alter or
repeal the By-Laws of the corporation.
EIGHTH: No director shall have personal liability to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, provided that
this Article shall not eliminate or limit the liability of a director
(i) for any breach of
the directors duty of loyalty to the corporation or its stockholders; (ii) for facts or
omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) under Section 174 of Title 8 of the Delaware Code; (iv) for any transaction
from which the director derived an improper personal benefit.
NINTH: Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State
of Delaware may, on the
application in a summary way of this corporation or of any creditor or stockholder thereof, or on
the application of any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of
any receiver or receivers appointed for this corporation under the provisions of Section 279 of
Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in
any manner as the said court directs. If a majority in number representing three-fourths in value
of the creditors or class of creditors, as the case may be, and/or stockholders or class of
stockholders of this corporation agree to any compromise or arrangement and to any reorganization
of this corporation as consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which said application
has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be, and also on this
corporation.
TENTH: Elections of directors need not be by written ballot unless the By-Laws of
this corporation so provide.
I, the undersigned, being the incorporator hereinabove named, for the purpose of forming a
corporation pursuant to the General Corporation Law of the State of Delaware, do make this
certificate, acknowledging the penalty of perjury, hereby declaring and certifying that this
Instrument is my act and deed and the facts herein stated are true, pursuant to 8 Del. C.
§103(b)(2) and accordingly have hereunto set my hand this
22nd day of March A.D., 1995.
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/s/ Brian A. Sullivan
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Brian A. Sullivan |
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exv3w522
Exhibit 3.522
AMENDED AND RESTATED BYLAWS
OF
GEORGIA RECYCLING SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the State of Delaware as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, either within or outside
of the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from time
to time, members of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words Corporate Seal, Delaware. The
seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1
or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
exv3w523
Exhibit 3.523
STATE OF DELAWARE
CERTIFICATE OF LIMITED PARTNERSHIP
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The Undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, do hereby
certify as follows: |
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First: The name of the limited partnership is Giles
Road Landfill TX, LP. |
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Second: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the city of
Wilmington ZIP Code: 19801.
The name of the Registered Agent at such address is
The Corporation Trust Company. |
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Third: The name and mailing address of each general partner is as follows: |
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Allied Waste Landfill Holdings,
Inc. 15880 N Greenway-Hayden Loop,
Suite 100 Scottsdale, AZ 85260 |
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In Witness Whereof, the undersigned has executed this Certificate of
Limited Partnership as of 23rd day of August, A.D, 2005. |
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By:
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/s/ Jo Lynn White |
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General Partner |
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Name:
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Jo Lynn White, Secretary of GP |
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(type or print name) |
exv3w524
Exhibit 3.524
AGREEMENT OF LIMITED PARTNERSHIP OF
GILES ROAD LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of August 23, 2005, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and ALLIED
WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Giles Road Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General
Partner files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity
until the Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
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2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest
and reinvest Partnership funds for the purposes set forth in
Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
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5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
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(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
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10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the Partnerships
liabilities and Partnerships property, and the Partnerships property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. During the period of liquidation,
the business and affairs of the Partnership shall continue to be governed by the provisions of this
Agreement. The proceeds from liquidation of the Partnerships property, to the extent sufficient
therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the Partners,
a certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
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11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and
the net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
9
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
Allied Waste Landfill Holdings, Inc.,
a Delaware corporation |
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Allied Waste Systems Holdings, Inc.,
a Delaware corporation |
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By:
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/s/ Donald W. Slager
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By:
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/s/ Steven M. Helm |
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Name:
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Donald W. Slager
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Name:
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Steven M. Helm |
Its:
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President
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Its:
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Vice President |
10
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
10.00 |
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1 |
% |
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Limited Partner:
Allied Waste Systems Systems, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
990.00 |
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99 |
% |
11
exv3w525
Exhibit 3.525
ARTICLES OF INCORPORATION
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2654193 |
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ENDORSED FILED |
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in the office of the Secretary of State
of the State of California |
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JUN 3 2004 |
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KEVIN SHELLEY
Secretary of State |
I.
The name
of the corporation is Golden Bear Transfer Services, Inc.
II.
The purpose of the corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of California other than
the banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
III.
The name in the State of California of this corporations initial agent for service
process is:
Name C T Corporation System
IV.
This corporation is authorized to issue only one class of shares of stock; and the total
number of shares which this corporation is authorized to issue is 1,000, par value $.01 per
share.
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/s/ David A. Barclay
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David A. Barclay, Incorporator |
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exv3w526
Exhibit 3.526
AMENDED AND RESTATED BYLAWS
OF
GOLDEN BEAR TRANSFER SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, often percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or within the state of incorporation. Regular meetings
of the Board of Directors may be held without notice at such time and at such place as may from
time to time be determined by the Board of Directors. Special meetings of the Board of Directors
may be called by the Chairman, if there is one, the President or any two (2) directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by telephone, electronic
facsimile or telegram, not less than twenty-four (24) hours before the date of the meeting, or on
such shorter notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, as the same may be amended from time to time or
limited by applicable state law, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
5
or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w527
Exhibit 3.527
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GOLDEN TRIANGLE LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies
as follows:
I. The name of the limited partnership is Golden Triangle Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the
Partnerships registered agent for service of process in the State of Delaware at such
address is The Corporation Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited
Partnership of Golden Triangle Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings,
Inc., a Delaware corporation, its
General Partner
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By: |
/s/
Jo Lynn White
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Name: |
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Jo Lynn White |
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Title: |
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Secretary |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 05:00 PM 12/12/2001
010638288 3468059 |
exv3w528
Exhibit 3.528
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
GOLDEN TRIANGLE LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Golden Triangle Landfill TX, LP (the
First Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Golden Triangle TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State on December 12, 2001, and the related Agreement of Limited Partnership of Golden
Triangle Landfill TX, LP, dated as of December 12, 2001 (the Agreement) between AWLH and BFI
Waste Systems of North America, Inc., a Delaware corporation (BFINA). Unless specifically defined
herein, capitalized terms appearing in this First Amendment shall have the meanings given those
terms in the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the Partnership to
AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited partner
of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby consents to (a)
the transfer described in Recital B above of BFINAs interest in the Partnership to AWSH and (b)
the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs responsibilities and
obligations as a Limited Partner in the Partnership, and agrees to be bound by the provisions of
the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to read as
set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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General Partner |
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By:
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/s/ Jo Lynn White
Jo Lynn White, Secretary
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Allied Waste Systems Holdings, Inc., |
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a Delaware corporation |
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Limited Partner |
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By:
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/s/ Jo Lynn White
Jo Lynn White, Secretary
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste Systems Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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99 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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1 |
% |
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TOTAL
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100 |
% |
-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
GOLDEN TRIANGLE LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and BFI WASTE
SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings
set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement.
1.3 Name. The name of the Partnership is Golden Triangle Landfill TX, LP. The General Partner
may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware by the General Partner, upon
written notice to the Limited Partner. The Partnership may maintain a registered office in any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Partnership in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service of legal
process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner files a
Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited Partnership with
the Delaware Secretary of State in accordance with the provisions of the Act. The Partners shall
take any and all other actions, and shall execute and file such amendments to this Agreement or to
the certificate of limited partnership as are reasonably necessary to perfect and maintain the
status of the Partnership as a limited partnership under the laws of the State of Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the cash or
other assets set forth in Exhibit A to this Agreement. In conjunction with such contributions, each
Partner shall receive a credit to its Capital Account equal to its Capital Contribution and a
Percentage Interest in the Partnership as set forth on Exhibit A. No Partner shall be obligated to
make additional Capital Contributions to the Partnership, except upon the unanimous written consent
of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner shall
withdraw any Capital Contributions or any money or other property from the Partnership without the
written consent of the other Partners. Under circumstances requiring a return of any Capital
Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts, liabilities,
contracts or any other obligations of the Partnership. Except as agreed upon by the Partners, and
except as otherwise provided by the Act or by any other applicable state law, no Partner shall be
required to make any other Capital Contributions or to loan any funds to the Partnership. No
Partner shall have any personal liability for the repayment of its Capital Contributions or loans
of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed
to benefit any creditor of the Partnership, and no creditor of the Partnership will be entitled to
require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may voluntarily or
involuntarily withdraw from the Partnership or terminate its interest therein without the prior
written consent of the other Partners. Any Partner who withdraws from the Partnership in breach of
this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make loans to the
Partnership, which shall bear interest and be repaid on such reasonable terms and conditions as may
be approved by the General Partner. No Partner shall be required to make a loan to the Partnership
unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash Flow, if any,
shall be distributed to the Partners in proportion to their Percentage Interests at such times as
may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections 704(b),
704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items thereof for
each fiscal year of the Partnership shall be allocated to the Partners in proportion to their
Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in accordance
with the Regulations under uniform policies approved by the General Partner, upon the advice of the
Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and exclusive
right to manage the affairs of the Partnership and shall have all of the rights and powers that may
be possessed by general partners under the Act. If two or more Persons are serving as General
Partners, decisions regarding the management of the Partnership and its business and affairs shall
be made by the consent of a majority in number of the General Partners then serving. The rights and
powers that the General Partner may exercise include, but are not limited to, the following:
(a) invest
and reinvest Partnership funds for the purposes set forth in
Section 1.4, in any
manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2
Right to Rely on General Partner. Any Person dealing with the Partnership may rely upon a
certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as officers
of the Partnership. The officers shall have the authority to act for and bind the Partnership to
the extent of the authority granted to them by the General Partner on behalf of the Partnership.
The officers of the Partnership may include a president, vice presidents, a secretary, a treasurer,
and such other officers as the General Partner deems appropriate. The officers of the Partnership
will be entitled to such compensation for their services as the General Partner may reasonably
determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the Partners
of any transaction, notice, event or proposal directly relating to the management and operation of
the Partnership or to its assets that does or could materially affect, either adversely or
favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend, indemnify and
save harmless the Partners and their officers and directors (the Indemnified Parties) from and
against all losses, claims, costs, liabilities and damages incurred by them by reason of any act
performed or omitted to be performed by them in connection with the business of the Partnership,
including attorneys fees incurred by them in connection with the defense of any action based on
any such act or omission; provided, however, no Indemnified Party shall be indemnified from any
liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all accounts,
books and other relevant Partnership documents. Each Partner shall have the right, during ordinary
business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership as the
tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer that does not comply with the
provisions of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means, the
interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner in
the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION
9.
GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases to be a
General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if any, shall have
the right and the power to continue the Partnership and its business without dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General Partner
pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no General
Partner, any Limited Partner may nominate one or more Persons for election as General Partner,
which Person or Persons shall have the right and the power to continue the Partnership and its
business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases to be a
General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be General
Partners pursuant to Section 9.1 hereof and no Person named as a successor General Partner in
Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and items thereof
of the Partnership for the taxable year in which the liquidation of the Partnership occurs shall be
allocated among the Partners so as to adjust the Capital Accounts of the Partners as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in this
Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to be given
by any provision of this Agreement shall be in writing and shall be delivered personally to the
Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this Section
11.1, or, if to a Partner, to such Partner at the address for such Partner set forth on Exhibit A
to this Agreement, or to such other address as the Partner may from time to time specify by notice
to the Partnership and the other Partners in accordance with this Section 11.1. Any such notice
shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and
provision of this Agreement shall be binding upon and inure to the benefit of the Partners and
their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Partners interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be construed
simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner, agrees to
perform all further acts and execute, acknowledge and deliver any documents that may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer
to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right that
such Partner may have to maintain any action for partition with respect to any of the Partnerships
property.
11.10 Counterpart Execution. This Agreement may be executed in any number of counterparts with
the same effect as if all of the Partners had signed the same document. All counterparts shall be
construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement, all
actions that the General Partner may take and all determinations that the General Partner may make
pursuant to this Agreement may be taken and made at the sole and absolute discretion of the General
Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
8
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General Partner,
or who has become a General Partner pursuant to the terms of this Agreement, and (b) has not ceased
to be a General Partner pursuant to the terms of this Agreement. General Partners means all such
Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a Limited
Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of this
Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on Exhibit
A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
9
12.15
Substituted Limited Partner has the meaning given that
term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
Name:
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/s/ Jo Lynn White
Jo Lynn White
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By:
Name:
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/s/ Jo Lynn White
Jo Lynn White
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Its:
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Secretary
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner: |
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Limited Partner: |
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$ |
990.00 |
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99 |
% |
BFI Waste Systems of North America, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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11
exv3w529
Exhibit 3.529
ARTICLES OF INCORPORATION
OF
GOLDEN WASTE DISPOSAL, INC.
ARTICLE I
NAME
The name of the corporation is GOLDEN WASTE DISPOSAL, INC.
ARTICLE II
ORGANIZATION
The corporation is organized pursuant to the provisions of the Georgia Business
Corporation Code.
ARTICLE III
PERIOD OF DURATION
The corporation has perpetual duration.
ARTICLE IV
PURPOSES
The corporation is a corporation for profit and is organized
for the following purposes:
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A. |
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Retail solid waste hauling/removal. |
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B. |
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The foregoing statement of purposes shall be construed
as a statement of both purposes and powers, shall be
liberally construed in aid of the powers of this
corporation and the powers and purposes stated in
each clause shall, except where otherwise stated, be in nowise limited or
restricted by any term or provision of any other clause, and shall be regarded not only
as independent purposes, but the purposes and powers stated |
GREGORY C. SOWELL, P.C.
Attorney at Law
P.O. BOX 7766
TIFTON, GEORGIA 31793
shall be construed distributively as each object expressed, and the enumeration
as to specific powers shall not be construed as to limit in any manner the general
powers provided herein or granted by law, but are in furtherance of, and in addition to
and not in limitation of the said general powers.
ARTICLE V
CAPITALIZATION
The aggregate number of shares which the corporation shall have authority to issue is
100,000, consisting of one class of common shares, all of such shares having no par value.
ARTICLE VI
REGISTERED OFFICE AND AGENT
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A. |
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The address of the initial registered office of the
corporation is P.O. Box 7766, 128 First Street,
Suite 225, Tifton, Georgia 31793. |
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B. |
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The name of the corporations initial registered
agent at the address of the initial registered
office is: |
GREGORY C. SOWELL
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C. |
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The prior written consent of the said appointed
registered agent is attached hereto. |
ARTICLE VII
DIRECTORS
The initial board of directors, incorporators, and sole stockholders of the corporation are:
GREGORY
C. SOWELL, P.C.
Attorney at Law
P.O. BOX 7766
TIFTON, GEORGIA 31793
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RICHARD GOLDEN
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1205 OLD OCILLA ROAD |
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TIFTON, GEORGIA 31794 |
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R. E. BUDDY LINDSEY
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ROUTE 1, BOX 40050 |
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OMEGA, GEORGIA 31775 |
ARTICLE VIII
DIVIDENDS AND DISTRIBUTIONS
In accordance with the provisions of O.C.G.A. §§14-2-90 and 14-2-91, the Board of
Directors of the corporation may, from time to time:
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declare and the corporation thereupon shall pay
dividends on its outstanding shares in cash, property,
or its shares; |
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B. |
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distribute to its shareholders out of capitol surplus
of the corporation a portion of its assets, in cash or
property; and |
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C. |
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take such other and further action not inconsistent
with Georgia law and which are authorized with the
affirmative vote of a majority of the outstanding
shares. |
The above declarations are subject, however, to the provision that none of the aforementioned
payments shall be made when the corporation is insolvent and likewise subject to the further
limiting provisions of the aforementioned Code sections.
IN WITNESS WHEREOF, the Articles of Incorporation have been executed by the duly
authorized representative of the incorporator.
GREGORY
C. SOWELL, P.C.
Attorney at Law
P.O. BOX 7766
TIFTON, GEORGIA 31793
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GREGORY C. SOWELL, P.C. |
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BY:
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/s/ Gregory C. Sowell
GREGORY C. SOWELL
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ATTORNEY FOR INCORPORATIORS |
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P.O. Box 7766
128 First Street
Tifton, Georgia 31793
912/382-0037
GREGORY C. SOWELL, P.C.
Attorney at Law
P.O. BOX 7766
TIFTON, GEORGIA 31793
exv3w530
Exhibit 3.530
BY-LAWS
OF
GOLDEN WASTE DISPOSAL, INC.
ARTICLE ONE
OFFICES
1.1 The address of the registered office of the corporation is:
P.
O. Box 7766
128 First Street, Suite 225
Tifton, Georgia 31794.
ARTICLE TWO
CAPITAL STOCK
2.1 Certificates of stock shall be numbered in the order in which they are issued. They shall be
signed by the president and secretary and the seal of the corporation shall be affixed thereto. On
the stub of each certificate shall be entered the name of the person owning the shares, the number
of shares, and the date of issue. Certificates of stock exchange or return shall be cancelled by
the secretary and placed in their original place in the stock book.
2.2 Transfers of stock shall be made on the stock books of the corporation by the holder in person
or by power of attorney, or surrender of the old certificate for such shares, duly assigned.
ARTICLE THREE
SHAREHOLDERS MEETINGS
3.1 The annual meeting of stockholders of the corporation shall be held during the month of
September of each year within or without the state of Georgia at such time and place as may from
time to time be fixed by the board of directors.
3.2 At all meetings of stockholders, the holders of common stock shall be entitled to cast their
one vote for each share of common stock, either in person or by written proxy.
3.3 Special meetings of the stockholders may be called at any time by the president or any holder
or holders of as much as one-third of the outstanding capital stock of the corporation upon not
less than ten nor more than thirty days notice, either mailed to the last known address or
personally given to each stockholder. Notice of a special meeting may be waived by instrument in
writing. Attendance at such meeting in person or by proxy shall constitute a waiver of notice
thereof.
3.4 Notice of any special meeting of stockholders shall state the purpose or purposes for which the
meeting is called.
3.5 At all meetings of stockholders a majority of the outstanding shares of stock shall
constitute a quorum for the transaction of business, and no resolution or business shall be
transacted without the favorable vote of a majority of the shares represented at the meeting and
entitled to vote. A lesser number may adjourn from day to day.
3.6 Any action to be taken at a meeting of the stockholders of the corporation, or any action that
may be taken at a meeting of the stockholders, may be taken without a meeting if a consent in
writing setting forth the action so taken shall be signed by all of the stockholders entitled to
vote with respect to the subject matter thereof.
ARTICLE FOUR
DIRECTORS
4.1 Subject to these by-laws, or any lawful agreement between the stockholders, the full and entire
management of the affairs and business of the corporation shall be vested in the board of
directors, which shall have and may exercise all of the powers that may be exercised or performed
by the corporation.
4.2 The board of directors shall consist of not less than two nor more than five members, the
precise number to be fixed by resolution of the stockholders from time to time.
They shall be elected at the annual meeting of the stockholders and shall serve for a term of
one year and until their successors are elected. A majority of said directors shall constitute a
quorum for the transaction of business. All resolutions adopted and all business transacted by the
board of directors shall require the affirmative vote of a majority of the directors present at the
meeting.
4.3 The directors may fill the place of any director which may become vacant prior to the
expiration of his term, such appointment by the directors to continue until the expiration of the
term of the director whose place has become vacant.
4.4 The directors shall meet annually following the annual meeting of the stockholders. Special
meetings of the directors may be called at any time by the president or by any two directors, on
two days notice. Notice of any such meeting may be waived by instrument in writing. Attendance
in person at such meeting shall constitute a waiver of notice thereof. The signature of any
director approving the minutes of any meeting of the board of directors, entered thereon, shall be
effective to the same extent as if such director had been present at the meeting. Any meeting of
the board of directors may be held within or without the
state of Georgia at such place as may be determined by the person or persons calling the meeting.
4.5 Any action to be taken at a meeting of the directors, or any action that may be taken
at a meeting of the directors, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors.
ARTICLE FIVE
OFFICERS
5.1 The officers of the corporation shall consist of a president, one or more vice-presidents, a
secretary and a treasurer. The officers shall be elected by the directors and shall serve at the
pleasures of the board of directors.
5.2 The president shall be the chief executive officer of the corporation and shall have general
and active management of the operation of the corporation. He shall be responsible for the
administration of the corporation, including general supervision of the policies of the
corporation, general and active management of the financial affairs of the corporation, and shall
execute bonds, mortgages or other contracts under the seal of the corporation. He shall only
borrow money on behalf of the corporation pursuant to specific authority from the board of
directors. The president
shall have the authority to institute or defend legal proceedings when directors are
deadlocked.
5.3 The vice-president shall perform such duties as are generally performed by
vice-presidents. The vice-president shall perform such other duties and exercise such other powers
as the board of directors or president shall request or delegate. The assistant vice-presidents
shall have such powers, and shall perform such duties, as may be prescribed from time to time by
the board of directors or the president.
5.4 The secretary shall keep minutes of all
meetings of the stockholders and directors and have charge of the minutes books, stock books and
seal of the corporation and shall perform such other duties and have such other powers as may from
time to time be delegated to him by the president or the board of directors.
5.5 The treasurer shall be charged with the management of the financial affairs of the corporation
and shall have the power to recommend action concerning the corporations affairs to the president.
5.6 Assistants to the secretary and treasurer may be appointed by and shall have such duties as
shall be delegated to them by the president or the board of directors.
ARTICLE SIX
SEAL
6.1 The seal of the corporation shall be in such form as the board of directors may from
time to time determine. In the event it is inconvenient to use such a seal at any time, the
signature of the company followed by the word Seal enclosed in parentheses or scroll, shall be
deemed the seal of the corporation. The seal shall be in the custody of the secretary and affixed
by him on the certificates of stock and such other papers as may be directed by law, by these
by-laws or by the board of directors.
ARTICLE SEVEN
AMENDMENT
7.1 These by-laws may be amended at any meeting of the stockholders by the affirmative
vote of a majority of the issued and outstanding common stock of the corporation.
ADOPTED
this 26 day of Sept,
1988.
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/s/ Betty E. Golden
BETTY E. GOLDEN,
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Secretary Golden Waste Disposal, Inc. |
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APPROVED:
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[SEAL] |
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C:19.1 |
Richard B. Golden, President
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By-Laws |
exv3w531
Exhibit 3.531
A TRUE COPY
/s/ [ILLEGIBLE]
FILED
JUL 27 1994
SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
GRANTS PASS SANITATION, INC.
ARTICLE I NAME
The name of the corporation
is Grants Pass Sanitation, Inc.
ARTICLE II PURPOSES
The corporation is organized
for the following purposes:
1. To buy, own, hold, sell, exchange, or otherwise dispose of and generally deal
in and with properties, interests, and businesses of every kind; and
2. To transact any or all lawful business for which corporations may be
incorporated under the Oregon Business Corporation Act.
ARTICLE III SHARES
The number of shares the corporation is authorized to issue is 1,000 common
shares.
ARTICLE IV BOARD OF DIRECTORS
Any vacancy occurring in the board of directors, including but not limited to any
directorship to be filled because of any increase in the number of directors, may be filled
by the affirmative vote of a majority of the remaining directors, although less than a
quorum of the board of directors, or by the sole
Page 1 ARTICLES OF INCORPORATION
remaining director. A director elected to fill a vacancy shall be elected for the
unexpired term of the predecessor in office, if any.
ARTICLE V INDEMNIFICATION
A. The corporation shall indemnify, to the fullest extent permitted by law, any person
who is made or threatened to be made a party to, witness in, or otherwise involved in, any action,
suit, or proceeding, whether civil, criminal, administrative, investigative, or otherwise
(including any action, suit, or proceeding by or in the right of the corporation) by reason of the
fact that the person is or was a director or officer of the corporation or any of its subsidiaries,
or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with
respect to any employee benefit plan of the corporation or any of its subsidiaries, or served or
serves at the request of the corporation as a director or officer, or as a fiduciary of an employee
benefit plan, of another corporation, partnership, joint venture, trust, or other enterprise. Any
indemnification provided pursuant to this Article V shall not be exclusive of any rights to which
the person indemnified may otherwise be entitled under any provision of these Articles of
Incorporation, the Bylaws, agreement, statute, policy of insurance, or otherwise.
B. Indemnification provided under this Article V shall continue to cover any director or
officer after the person ceases to serve in that capacity and shall enure to the benefit of the
persons heirs, personal representatives, and administrators.
Page 2 ARTICLES OF INCORPORATION
C. The right to indemnification conferred by this Article V shall be considered a
contract right between the corporation and the person entitled to indemnity under this Article V.
D. In addition to any rights set forth above in this Article V, the corporation shall advance
all reasonable expenses incurred by a director or officer who on behalf of the corporation is party
to a proceeding, in advance of the proceeding to the fullest extent required or authorized under
the law.
ARTICLE VI REGISTERED OFFICE AND AGENT
The street address of the corporations
initial registered office and the name of its initial registered agent at that office are as
follows:
Eric Sogge
1001 SW Fifth Avenue, Suite 1800
Portland, Oregon 97204-1194
ARTICLE VII MAILING ADDRESS FOR NOTICES
The mailing address to which notices,
as required by the Oregon Business Corporation Act, may be mailed is as follows:
c/o Eric Sogge
1001 SW Fifth Avenue, Suite 1800
Portland, Oregon 97204-1194
Page 3 ARTICLES OF INCORPORATION
ARTICLE VIII INCORPORATOR
The name and address of the incorporator are as follows:
Eric Sogge
1001 SW Fifth Avenue, Suite 1800
Portland, Oregon 97204-1194
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/s/ Eric Sogge
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Eric Sogge, Incorporator |
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Page 4 ARTICLES OF INCORPORATION
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION OF
GRANTS PASS SANITATION, INC.
COPY
FILED
AUG 23 1999
SECRETARY OF STATE
1. The name of the corporation is Grants Pass Sanitation, Inc.
2. The amendments adopted to the articles of incorporation are as follows, to add the
following articles to the articles of incorporation:
ARTICLE V. ELIMINATION OF LIABILITY
A. To the fullest extent permitted by law, no director of the
corporation shall be personally liable to the corporation or its shareholders
for monetary damages for conduct as a director, except that this provision
shall not eliminate or limit the liability of a director for any of the
following:
1. Any act or omission occurring before the date this provision
becomes effective;
2. Any breach of the directors duty of loyalty to the
corporation or its shareholders;
3. Acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
4. Any distribution to shareholders that is unlawful under the
Oregon Business Corporation Act or successor statute; or
5. Any transaction from which the director derived an improper
personal benefit.
B. Without limiting the generality of the foregoing, if the provisions of
applicable law are further amended at any time, and from time to time, to
authorize corporate action further eliminating the personal liability of directors
and officers of the corporation, the liability of directors and officers of the
corporation shall be eliminated or limited to the fullest extent permitted by
applicable law, as so amended.
C. No amendment to or repeal of this Article V, or adoption of any provision
of these Articles of Incorporation inconsistent with this Article V, or a change
in the law, shall adversely affect any elimination or limitation of liability, or
other right or protection, that is based upon this Article V and pertains to any
act, conduct, omission, or circumstance that occurred or existed before the amendment,
repeal, adoption, or change. No change in the law shall reduce or eliminate the rights and
protections set forth in this Article V unless the change in law specifically requires the
reduction or elimination. No amendment to or repeal of this Article V shall apply to or
have any effect on the liability or alleged liability of any director or officer of the
corporation for or with respect to any acts or omissions before the amendment or repeal.
ARTICLE VI. INDEMNIFICATION
A. The corporation shall indemnify, to the fullest extent permitted by law, any
person who is made or threatened to be made a party to, witness in, or otherwise involved
in, any action, suit, or proceeding, whether civil, criminal, administrative,
investigative, or otherwise (including any action, suit, or proceeding by or in the right
of the corporation) by reason of the fact that the person is or was a director or officer
of the corporation or any of its subsidiaries, or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any employee benefit plan
of the corporation or any of its subsidiaries, or served or serves at the request of the
corporation as a director or officer, or as a fiduciary of an employee benefit plan, of
another corporation, partnership, joint venture, trust, or other enterprise. Any
indemnification provided pursuant to this Article VI shall not be exclusive of any rights
to which the person indemnified may otherwise be entitled under any provision of these
Articles of Incorporation, the Bylaws, agreement, statute, policy of insurance, or
otherwise.
B. Indemnification provided under this Article VI shall continue to cover any
director or officer after the person ceases to serve in that capacity and shall enure to
the benefit of the persons heirs, personal representatives, and administrators.
C. The right to indemnification conferred by this Article VI shall be considered a
contract right between the corporation and the person entitled to indemnity under this
Article VI.
D. In addition to any rights set forth above in this Article VI, the corporation
shall advance all reasonable expenses incurred by a director or officer who on behalf of
the corporation is party to a proceeding, in advance of the proceeding to the fullest
extent required or authorized under the law.
3. The date each amendment was adopted is 8/18, 1999.
Page 2 ARTICLES OF AMENDMENT
4. The amendments were approved by the shareholders. One thousand shares of the
corporation are outstanding, 1,000 votes are entitled to be cast on the amendments, 1,000 votes
were cast for the amendments, and no votes were cast against the amendments.
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Grants Pass Sanitation, Inc.
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By |
/s/ Gary A. Barton
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Gary A. Barton, Vice President |
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Page 3 ARTICLES OF AMENDMENT
exv3w532
Exhibit 3.532
AMENDED AND RESTATED BYLAWS
OF
GRANTS PASS SANITATION, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.
Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3.
Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten
(10) (unless a longer period is required by law) nor more than sixty (60) days (unless a
longer period is required by law) before the date of the meeting to each stockholder entitled to
vote at such meeting. Business transacted at all Special Meetings shall be confined to the objects
stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer
of the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject
to any state law restrictions or requirements, the chairman of a meeting shall, among other
things, have absolute authority to fix the period of time allowed for the registration of
stockholders and the filing of proxies, to determine the order of business to be conducted at such
meeting and to establish reasonable rules for expediting the business of the meeting (including
any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his
3
successor shall be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Directors of the Corporation may be removed
from the Board of Directors, with or without cause, subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or within the state of incorporation. Regular meetings
of the Board of Directors may be held without notice at such time and at such place as may from
time to time be determined by the Board of Directors. Special meetings of the Board of Directors
may be called by the Chairman, if there is one, the President or any two (2) directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by telephone, electronic
facsimile or telegram, not less than twenty-four (24) hours before the date of the meeting, or on
such shorter notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
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Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the
5
disinterested directors, even though the disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President, and any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if
6
present. The Board of Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision
7
he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there is no
Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there is one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as
8
shall be satisfactory to the Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property of whatever kind
in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section
3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
9
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law).
A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any
regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection
11
with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person (a) did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, (b) with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
12
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this
Article VIII shall mean any other corporation
or any partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall
13
not be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w533
Exhibit 3.533
CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation is:
Great Lakes Disposal Service, Inc.
SECOND:
The address of the corporations registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle. The name of its registered agent
at such address is Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall have
authority to issue is 1,000 shares of Common Stock of the par value of $.01 per share.
FIFTH: The name and mailing address of the incorporator are: Cindy Sabish,
Kirkpatrick & Lockhart LLP, 1500 Oliver Building, Pittsburgh,
Pennsylvania 15222.
SIXTH:
The corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the
board of directors is expressly authorized to adopt, amend or repeal the by-laws of the
corporation.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware,
as the by-laws may provide. The books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the board of directors or in the
by-laws of the corporation.
Elections of directors need not be by written ballot unless the by-laws of the corporation shall so
provide.
NINTH: The corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate of incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
TENTH: The corporation shall indemnify, to the fullest extent now or hereafter
permitted by law, each director or officer of the corporation who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that he is or was
an authorized representative of the corporation, against all expenses (including attorneys fees
and disbursements), judgments, fines (including excise taxes and penalties) and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding.
A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, provided however,
that this provision shall not eliminate or limit the liability of a director to the extent that
such elimination or limitation of liability is expressly prohibited by the Delaware General
Corporation Law as in effect at the time of the alleged breach of duty by such director.
Any repeal or modification of this Article by the stockholders of the corporation shall not
adversely affect any right or protection existing at the time of such repeal or modification to
which any person may be entitled under this Article. The rights conferred by this Article shall not
be exclusive of any other right which the corporation may now or hereafter grant, or any person may
have or hereafter acquire, under any statute, provision of this Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or otherwise. The rights
conferred by this Article shall continue as to any person who has ceased to be a director or
officer of the corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
For the purposes of this Article, the term authorized representative shall mean a director,
officer, employee or agent of the corporation or of any subsidiary of the corporation, or a
trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the corporation or by any subsidiary of the corporation, or a person
who is or was serving another corporation, partnership, joint venture, trust or other enterprise in
any of the foregoing capacities at the request of the corporation.
THE UNDERSIGNED, being the incorporator named above, for the purposes of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, does make this certificate,
hereby declaring and certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 4th day of September, 1997.
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/s/ Cindy Sabish
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Cindy Sabish, Incorporator |
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exv3w534
Exhibit 3.534
AMENDED AND RESTATED BYLAWS
OF
GREAT LAKES DISPOSAL SERVICE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings,
both regular and special, either outside of or within the state of incorporation. Regular meetings
of the Board of Directors may be held without notice at such time and at such place as may from
time to time be determined by the Board of Directors. Special meetings of the Board of Directors
may be called by the Chairman, if there is one, the President or any two (2) directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by telephone, electronic
facsimile or telegram, not less than twenty-four (24) hours before the date of the meeting, or on
such shorter notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, as the same may be amended from time to time or
limited by applicable state law, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any
regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
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Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding
capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w535
Exhibit 3.535
CERTIFICATE OF FORMATION
GREAT PLAINS LANDFILL OK, LLC
Pursuant
to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by
this instrument is Great Plains Landfill OK, LLC.
2. Registered
Office; Registered Agent. The address of the registered office of
the Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle. The Companys registered agent at that address is The Corporation
Trust Company.
IN WITNESS WHEREOF, the undersigned, an authorized person of the Company, has caused this
Certificate of Formation to be duly executed as of the 4rth day of June, 1997.
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Allied Waste North America, Inc., |
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a Delaware corporation, |
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Member |
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By:
Its:
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/s/ Steven M. Helm
Vice President Legal
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Steven M. Helm |
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exv3w536
Exhibit 3.536
OPERATING AGREEMENT OF
GREAT PLAINS LANDFILL OK, LLC
This Operating Agreement is entered into as of June 5, 1997 by and between Allied Waste North
America, Inc., a Delaware corporation (N.A.) and Allied Waste Landfill Holdings, Inc., a
Delaware corporation (Holdings), each individually referred to herein as a Member, and
collectively as Members.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 9.12 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is GREAT PLAINS LANDFILL OK, LLC. The name of the
Company may be changed upon the consent of the Members.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Members that the Company shall always be operated
in a manner consistent with its treatment as a partnership for federal and state income tax
purposes. It also is the intent of the Members that the Company not be operated or treated as a
partnership for purposes of Section 303 of the federal Bankruptcy Code. No Member shall take
any action inconsistent with the express intent of the parties hereto.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Members. The Company may maintain a registered office in any state within which it does business
at any location approved by the Members.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent
for service of legal process may be changed upon the consent of the Members.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Members shall cause a Certificate of Formation to
be filed in the State of Delaware. The Members shall file any amendments to the Certificate of
Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Members
in accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Members in accordance with this Agreement, any Member or a designee of
a Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Members. The name, address and Percentage Interest of each Member are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Members. The Members shall contribute to the Company the cash
or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Member shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Company as set forth on Exhibit A.
2.3 Additional Capital Contributions. No Member shall be obligated to make
additional Capital Contributions to the Company, except upon the unanimous written consent of the
Members.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Member
shall withdraw any Capital Contributions or any money or other property from the Company without
the written consent of the other Member. Under circumstances requiring a return of any Capital
Contributions, no Member shall have the right to receive property other than cash, unless otherwise
specifically agreed in writing by the Members at the time of such distribution.
(b) Liability of Members. No Member shall be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Members, and
except as otherwise provided by the Act or by any other applicable state law, the Members shall be
liable only to make their Capital Contributions as provided in Sections 2.2 and 2.3 hereof and
shall not be required to make any other Capital Contributions or loans to the Company. No Member
shall have any personal liability for the repayment of the Capital Contributions or loans of any
other Member.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require any Member to solicit or demand Capital Contributions from any other Member.
2
(d) Withdrawal. Except as provided in Section 7 hereof, no Member may voluntarily or
involuntarily withdraw from the Company or terminate its interest therein without the prior
written consent of the other Member. Any Member who withdraws from the Company in breach of this
Section 2.4(d):
(i) shall be treated as an assignee of a Members interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Company, on the same
basis as if the Member had not withdrawn, provided that any damages to the Company as a result of
such withdrawal shall be offset against amounts that would otherwise be distributed to such
Member. The right to share in distributions granted under this Section 2.4(d) shall be in lieu of
any right the withdrawn member may have under Section 18-604 of the Act to receive a distribution
or payment of the fair value of its interest in the Company.
2.5 Member Loans. Upon the approval of the Members, any Member may make loans
(Member Loans) to the Company, which shall bear interest and be repaid on such reasonable terms
and conditions as may be approved by the Members. No Member shall be required to make a Member
Loan unless such Member has agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be
distributed to the Members in proportion to their Percentage Interests, at such times as may be
determined by the Members.
SECTION 4. ALLOCATIONS
4.1 Capital Accounts. A capital account shall be maintained for each Member in
accordance with the Regulations, under uniform policies established by the Members.
4.2 Profits and Losses. Unless otherwise required by Code Sections 704(b), 704(c) or
Treasury Regulations promulgated thereunder, all Profits, Losses and items thereof for each fiscal
year of the Partnership shall be allocated to the Partners in proportion to their Percentage
Interests.
3
SECTION 5. MANAGEMENT
5.1 General Management Structure. Unless specifically provided otherwise herein,
all decisions and actions concerning the Company and its affairs, and all matters requiring the
consent or approval of the Members under this Agreement, shall be made or taken upon concurrence of
a Majority in Interest of the Members. The Members shall devote such time and effort as is
necessary for the management of the Company and the conduct of its business, but shall not be
required to devote their full time efforts to the Company. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of any Member as binding on the Company,
without any duty of further inquiry regarding any approval of the Members required under this
Agreement.
5.2 Delegation of Authority to Officers. The Members may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions duly adopted by the Members
on behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Members deem appropriate. The officers of
the Company will be entitled to such compensation for their services as the Members may reasonably
determine from time to time.
5.3 Communications. The Members shall promptly advise and inform each other of any
transaction, notice, event or proposal directly relating to the management and operation of the
Company or to its assets which does or could materially affect, either adversely or favorably, the
Company, its business or its assets.
5.4 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Members and their officers and directors (the Indemnified Parties) from and
against all losses, claims, costs, liabilities and damages incurred by them by reason of any act
performed or omitted to be performed by them in connection with the business of the Company,
including attorneys fees incurred by them in connection with the defense of any action based on
any such act or omission; provided, however, no Indemnified Party shall be indemnified from any
liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. Each Member shall have the right, during
ordinary business hours, to inspect and copy such Company documents.
6.2 Tax Matters. N.A. is hereby appointed on behalf of the Company as the tax
matters partner under the Code.
SECTION 7. TRANSFER OF COMPANY INTERESTS; NEW MEMBERS
7.1 General. No Member shall sell, assign, pledge, hypothecate,
encumber or
4
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Company without the consent of the other Member. A transferee of a Members
interest in the Company will be admitted as a Substituted Member only pursuant to Section 7.3
hereof. Any purported Transfer which does not comply with the provisions of this Section 7 shall
be void and shall not cause or constitute a dissolution of the Company.
7.2 Assignee of Members Interest. If, pursuant to a Transfer of an interest in the
Company by operation of law and without violation of Section 7.1 hereof (or pursuant to a Transfer
that the Company is required to recognize notwithstanding any contrary provisions of this
Agreement), a Person acquires an interest in the Company, but is not admitted as a Substituted
Member pursuant to Section 7.3 hereof, such Person:
(a) shall be treated as an assignee of a Members interest, as provided in the
Act;
(b) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Company with respect to the
transferred interest, on the same basis as the transferring Member.
7.3 Substituted Members. No Person taking or acquiring, by whatever means, the
interest of any Member in the Company shall be admitted as a substituted Member in the Company (a
Substituted Member) without the written consent of all Members, which consent may be withheld or
granted in the sole and absolute discretion of each Member.
SECTION 8. DISSOLUTION AND TERMINATION
8.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Members to dissolve the Company;
(c) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any member (a
Dissolution Event) if within 90 days after the occurrence of any such Dissolution Event, a
Majority in Interest of the remaining Members affirmatively elects not to continue the Company; or
(d) The entry of a decree of dissolution under Section 18-802 of the Act.
5
8.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 8.1
hereof, the remaining Member(s) may participate in the winding up of the Company as provided in
Section 18-803 of the Act. The Company shall cease to carry on its business, except insofar as
may be necessary for the winding up of its business, but the Companys separate existence shall
continue until a certificate of cancellation has been filed with the Delaware Secretary of State or
until a decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the remaining Member(s), or court-appointed trustee, if there are no remaining Members, shall take
full account of the Companys liabilities and assets, and such assets shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. During the period of liquidation,
the business and affairs of the Company shall continue to be governed by the provisions of this
Agreement, with the management of the Company continuing as provided in Section 5 hereof. The
proceeds from liquidation of the Companys property, to the extent sufficient therefor, shall be
applied and distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to Members who are creditors, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Members in satisfaction of any Member Loans which have not been satisfied
pursuant to Section 8.2(b)(i); and
(iii) To the Members in accordance with Section 3.
Notwithstanding anything in Section 4 hereof to the contrary, any Profits, Losses and items
thereof of the Company for the taxable year in which the liquidation of the Company occurs shall
be allocated among the Members so as to adjust the Capital Accounts of the Members as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in
this Section 8.
8.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Members, a certificate of
cancellation shall be executed and filed by the Members with the Delaware Secretary of State.
SECTION 9. MISCELLANEOUS
9.1 Notices. Any notice, payment, demand or communication required or
permitted
6
to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the Company,
to the Company at the address set forth in Section 1.6 hereof, or to such other address as the
Company may from time to time specify by notice to the Members in accordance with this Section
9.1, or, if to a Member, to such Member at the address for such Member set forth on Exhibit A to
this Agreement, or to such other address as the Member may from time
to time specify by notice to
the Company and the other Members in accordance with this Section 9.1. Any such notice shall be
effective upon actual receipt thereof.
9.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Members
and their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 9.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Members interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 7 hereof.
9.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Member.
9.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
9.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
9.6 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
9.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
9.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Members.
9.9 Waiver of Action for Partition. Each of the Members waives any right that it may
have to maintain any action for partition with respect to any of the Companys property.
7
9.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
9.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions which any Member may take and all determinations which any Member may make pursuant to
this Agreement may be taken and made at the sole and absolute discretion of such Member.
9.12 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann. Tit.
6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of succeeding
law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means the capital account maintained for each Member in accordance
with Section 4.1 hereof.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Majority in Interest of the Members means Members owning a simple majority of the
Percentage Interests in the Company held by all Members.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Members refers collectively to all
8
Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
reasonably determined by the Members.
Percentage Interest means a Members interest, expressed as a percentage, in
Profits, Losses, and distributions of the Company as provided for in this Agreement. The Members
Percentage Interests are set forth opposite their names on Exhibit A hereto.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Members to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
Substituted Member has the meaning given that term in Section 7.3
hereof.
Transfer has the meaning given that term in Section 7.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc., |
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a Delaware corporation |
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By:
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/s/ Steven M. Helm |
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Its:
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V.P. Legal |
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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By:
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/s/ Steven M. Helm |
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Its:
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Secretary |
9
EXHIBIT A
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Initial Capital |
|
Percentage |
Names and Addresses of Members |
|
Contribution |
|
Interest |
Allied Waste North America, Inc.
15880
North Greenway Hayden Loop
Suite 100 Scottsdale, Arizona 85260
|
|
$
|
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|
99 |
% |
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|
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop Suite
100 Scottsdale, Arizona 85260
|
|
$
|
|
|
1 |
% |
10
exv3w537
Exhibit 3.537
PARTNERSHIP AGREEMENT
OF
GREEN VALLEY LANDFILL GENERAL PARTNERSHIP
This Partnership Agreement is entered into as of December 9, 1999, between Allied Waste
North America, Inc., a Delaware corporation, and Browning-Ferris Industries of Tennessee, Inc., a
Tennessee corporation, each individually referred to herein as a Partner, and collectively as
Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Green Valley Landfill General Partnership.
The name of the Partnership may be changed upon the consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its
business are primarily to engage in and conduct the business of owning and operating landfills, and
to engage in any other activity permitted under Kentucky law and the laws of any jurisdiction in
which the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880
North Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050, unless
the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described
in Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to
the Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of such Partners Capital Account without
the written consent of the other Partner. Under circumstances requiring a return of capital, no
Partner shall have the right to receive property other than cash, except as may be specifically
provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of the
Partners. No Partner shall be required to make a Partner Loan unless such Partner has agreed in
writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the Partners
in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations
Sections 1.704-1(b) and 1.704-2.
If the Partnership incurs nonrecourse deductions or partner nonrecourse deductions, or if
there is any change in the Partnerships minimum gain, as defined in such Regulations, the
allocation of Profits, Losses and items thereof to the Partners shall be modified in a reasonable
manner deemed necessary or advisable by the Partners, upon appropriate legal or tax advice, to
comply with such Regulations.
2
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority in
Interest of the Partners. The Partners shall devote such time and effort as is necessary for the
management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall
be entitled without further inquiry to rely on the signature of either Partner to bind the
Partnership in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall coordinate
with the Partnerships accountants the preparation of tax information and tax returns relating to
the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge, hypothecation or
other disposition of a Partnership interest in violation of this Section 8 shall be void and shall
not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
3
(a) The expiration of the term of the Partnership as set forth herein, unless that term
is extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities and the
establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the
Partners shall look solely to the assets of the Partnership for the return of their capital
contributions and shall have no right or power to demand or receive property other than cash from
the Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Partner to whom the same is directed, or sent by regular, registered or certified mail,
return receipt requested, addressed as follows: if to the Partnership, to the Partnership at the
address set forth in Section 1.5 hereof, or to such other address as the Partnership may from time
to time specify by notice to the Partners in accordance with this Section 10.1, or, if to a
Partner, to such Partner at the address for such Partner set forth below the Partners name on
Exhibit A, or to such other address as the Partner may from time to time specify by notice to the
Partnership in accordance with this Section 10.1. Any such notice shall be deemed to be
delivered, given and received for all purposes as of the date so delivered, if delivered personally
or if sent by regular mail, or as of the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, if sent by registered or certified
mail, postage and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
4
10.4 Headings. Section and other headings contained in this Agreement are
for reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that
it may have to maintain any action for partition with respect to any of the Partnerships property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of Sections 362.150 to 362.360 of the Kentucky Revised Statutes
known as the Uniform Partnership Act, as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained for such
Partner in accordance with Code Section 704(b) and Regulations promulgated thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Majority in Interest of the Partners means Partners owning a simple majority
of the Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less the
portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt payments,
(3) contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and any other
Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment adopted in
accordance with Section 7 hereof. Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any Partnership
continuing the business of this Partnership in the event of dissolution as herein provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement.
The Partners Percentage Interests are set forth opposite their names on Exhibit A attached
hereto.
Person means any individual, partnership, corporation, trust, limited liability company or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Partnerships taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), adjusted as deemed necessary by the Partners to comply with Code Section
704(b)
and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
6
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written.
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Allied Waste North America, Inc., |
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Browning-Ferris
Industries of Tennessee, Inc., |
a Delaware corporation |
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a Tennessee corporation |
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By:
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/s/ Steven M. Helm
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By:
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/s/ Donald W. Slager |
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Its:
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Vice President, Legal
|
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Its:
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Executive Vice President |
7
EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
|
Interest |
Allied Waste North America, Inc.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
|
|
$ |
990.00 |
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|
99 |
% |
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Browning-Ferris Industries of
Tennessee, Inc.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
|
|
$ |
10.00 |
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|
1 |
% |
exv3w538
Exhibit 3.538
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Microfilm
Number
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Filed with the Department of State
on APR 12, 2001 |
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[ILLEGIBLE] |
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Entity Number: 2999505
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Secretary of the Commonwealth |
CERTIFICATE OF ORGANIZATION-DOMESTIC LIMITED LIABILITY COMPANY
DSCB:
15-8913
(Rev 95)
In compliance with the requirements of
15 Pa. C.S. § 8913 (relating to certificate of
organization), the undersigned, desiring to organize a limited
liability company, herey state(s)
that
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1. The name of the limited liability company is:
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Greenridge Reclamarion, LLC |
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2. The (a) address of this limited liability companys initial registered office in this
Commonwealth or (b) name of its commercial registered office provider and the county of venue is:
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(a) |
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Number and Street
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City |
State
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Zip
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County |
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(b)
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c/o:
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C T Corporation System
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Alleghney |
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Name of Commercial Registered Office Provider
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County |
For a limited liability company represented by a commercial registered office provider, the
county in (b) shall be deemed the county in which the limited
liability company is located for
venue and official publication purposes.
3. The
name and address, including street and number, if any, of each organizer are:
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NAME
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ADDRESS |
Jo Lynn White
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15880 N. Greenway-Hayden Loop, Ste.
100, Scottsdale, Arizona 85260 |
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6. The specified effective date, if any is: |
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month
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8. For
additional provisions of the certificate, if any, attach an 8 1/2 x 11 sheet.
[ILLEGIBLE]
DSCB: 15-8913
(Rev 95)-2
IN TESTIMONY WHEREOF, the organizer(s) has (have) signed this Certificate of Organization this
11th day
of April, 2001
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/s/ Jo Lynn White |
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(Signature) |
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(Signature) |
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exv3w539
Exhibit 3.539
OPERATING AGREEMENT
OF
GREENRIDGE RECLAMATION, LLC
This Operating Agreement (the Agreement) of Greenridge Reclamation, LLC (the Company) is
executed as of April 12, 2001, by Allied Waste North America, Inc., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant
to the provisions of the Act and upon the terms and conditions set forth in this Agreement and
the Certificate of Organization.
1.3 Name. The name of the Company is Greenridge Reclamation, LLC. All business of
the Company shall be conducted in the Company name. The Company shall hold its property in the
name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of landfill operations, and to engage in any other activity permitted under
Pennsylvania law
and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Pennsylvania
shall be 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. The registered office may
be
changed to any other place within the State of Pennsylvania upon the consent of the Member.
The
Company may maintain a registered office in any state within which it does business at any
location
approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Pennsylvania are CT Corporation System,
1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. The Companys agent for
service of legal process may be changed upon the consent of the Member.
1.7
Certificate of Organization. The Member shall file any amendments to the
Certificate of Organization deemed necessary by it to reflect amendments to this Agreement
adopted by the Member in accordance with the terms hereof. Upon the approval of any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee
of the Member shall be authorized to execute and file such instruments with the appropriate
state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member is set forth in Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. The Member shall not be
obligated to make
additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company,
which shall bear interest and be repaid on such reasonable terms and conditions as the Member
may determine. The Member shall not be required to make a Member Loan unless the Member has
agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically to the
Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION
4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the
sole discretion of the Member. Any party dealing with the Company shall be permitted to rely
absolutely on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind
the Company to the extent of the authority granted to them in this Agreement or in resolutions
duly adopted by the Member on behalf of the Company. The officers of the Company may include a
president, vice presidents, an executive vice president, a secretary, a treasurer, and such
other officers as the Member deems appropriate. The officers of the Company will be entitled to
such compensation for their services as the Member may reasonably determine from time to time.
Unless otherwise specified by the Member, the following officers shall have the authority to
engage in the activities set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him by
this Agreement or by the Member.
2
4.2.2 Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act, the Executive Vice President, if there is one
acting, or in the
absence of an Executive Vice President, the Vice President or the Vice Presidents if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall perform
such other duties and have such other powers as the President from time to time may prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name
and to the credit of the Company in such depositories as may be designated by the Member. The
Treasurer shall disburse the funds of the Company as may be ordered by the Member, taking
proper vouchers for such disbursements, and shall render to the President, from time to time, when
the Member so requires, an account of all his transactions as Treasurer and of the financial
condition of the Company. If required by the Member, the Treasurer shall give the Company a bond in such
sum and with such surety or sureties as shall be satisfactory to the Member for the faithful
performance of the duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this
Agreement, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Member, the President, any Vice President,
if there are any appointed, or the Secretary, and in the absence of the Secretary or in the event
of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member,
the President, any Vice President, if there are any appointed, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond in
such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the
3
Member. The Member may delegate to any officer of the Company the power to choose such other
officers and to prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member and its officers and any officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred by them
by reason of any act performed or omitted to be performed by them in connection with the business
of the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if
written consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office
all accounts, books and other relevant Company documents. The books of account of the Company
shall be prepared and maintained on the same basis and in a manner consistent with the records
of the Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate
account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection
of the proceeds of such sale;
(b) The election by the Member to dissolve the Company; or
(c) Upon the Member becoming bankrupt or the occurrence of any event that
terminates the membership of the Member in the Company as described in Section 8971(a)(4) of
the Act.
(d) The entry of an order of judicial dissolution under Section 8972 of the Act.
4
6.2
Winding Up.
(a) General. Following the dissolution of the Company, the Company shall
cease to carry on its business, except insofar as may be necessary for the winding up of its
business, but the Companys separate existence shall continue until a certificate of dissolution has
been filed
in accordance with Section 6.3 or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized
successor in interest) shall be responsible for overseeing the winding up and liquidation of
the Company and shall take full account of the Companys liabilities and assets upon dissolution.
Any assets not required to discharge any liabilities of the Company shall be distributed to the
Member.
Upon the completion of the winding up, liquidation and distribution of the assets, the Company
shall be deemed terminated. The Company shall comply with any applicable requirements of the
Act pertaining to the winding up of the affairs of the Company and the final distribution of
its assets.
6.3 Certificate of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the Member, the Company
shall execute and file a certificate of dissolution with the Pennsylvania Department of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the
Member and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent
or intent
of this Agreement or any provision hereof.
7.3 Severability. Every provision of this Agreement is intended to be severable. If any
term or provision is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall
not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Pennsylvania shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties
of the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
5
Act means the Pennsylvania Limited Liability Company Act, as set forth in § 8901 et.
seq. of the Pennsylvania Code, as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Agreement, as amended from time to time. Words such as herein,
hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole, unless the
context otherwise requires.
Certificate of Organization has the meaning given that term in Section 1.7 hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party hereto, and no such other Person shall
have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc. |
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By:
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/s/ Steven M. Helm |
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Name:
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Steven M. Helm |
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Its:
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Vice President, Legal |
6
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
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Interest |
Allied Waste North America, Inc. |
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100.00 |
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100 |
% |
15880 N. Greenway-Hayden Loop, Ste.
100
Scottsdale, Arizona 85260 |
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7
exv3w540
Exhibit 3.540
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Microfilm Number
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Filed with the Department of State
on APR 12, 2001 |
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[ILLEGIBLE] |
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Entity Number: 2999506
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Secretary of the Commonwealth |
CERTIFICATE OF ORGANIZATION-DOMESTIC LIMITED LIABILITY COMPANY
DSCB: 15-8913
(Rev 95)
In
compliance with the requirements of 15 Pa. C.S. § 8913 (relating to certificate of
organization), the undersigned, desiring to organize a limited
liability company, herey state(s)
that
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1. The name of the limited liability company is:
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Greenridge Waste Services, LLC |
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2. The (a) address of this limited liability companys initial registered office in this
Commonwealth or (b) name of its commercial registered office provider and the county of venue is:
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Number and Street
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(b)
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c/o:
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C T Corporation System
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Alleghney |
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Name of Commercial Registered Office Provider
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County |
For a limited liability company represented by a commercial registered office provider, the
county in (b) shall be deemed the county in which the limited
liability company is located for
venue and official publication purposes.
3. The
name and address, including street and number, if any, of each organizer are:
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NAME
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Jo Lynn White
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15880 N. Greenway-Hayden Loop, Ste.
100, Scottsdale, Arizona 85260 |
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6. The specified effective date, if any is: |
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8. For
additional provisions of the certificate, if any, attach an 8 1/2 x 11 sheet.
[ILLEGIBLE]
DSCB: 15-8913
(Rev 95)-2
IN
TESTIMONY WHEREOF, the organizer(s) has (have) signed this Certificate of Organization this
11th day
of April, 2001
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/s/ Jo Lynn White |
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(Signature) |
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exv3w541
Exhibit 3.541
OPERATING AGREEMENT
OF
GREENRIDGE WASTE SERVICES, LLC
This Operating Agreement (the Agreement) of Greenridge Waste Services, LLC (the Company)
is executed as of April 12, 2001, by Allied Waste North America, Inc., a Delaware corporation, the
sole member of the Company (the Member), and shall bind the Member, the Company, and any other
person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Organization.
1.3 Name. The name of the Company is Greenridge Waste Services, LLC. All business of
the Company shall be conducted in the Company name. The Company shall hold its property in the name
of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of waste hauling, and to engage in any other activity permitted under Pennsylvania law and
the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Pennsylvania
shall be 1515 Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. The registered office
may be changed to any other place within the State of Pennsylvania upon the consent of the Member.
The Company may maintain a registered office in any state within which it does business at any
location approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Pennsylvania are CT Corporation System, 1515
Market Street, Suite 1210, Philadelphia, Pennsylvania 19102. The Companys agent for service of
legal process may be changed upon the consent of the Member.
1.7 Certificate of Organization. The Member shall file any amendments to the
Certificate of Organization deemed necessary by it to reflect amendments to this Agreement adopted
by the Member in accordance with the terms hereof. Upon the approval of any amendments thereto,
by the Member in accordance with this Agreement, the Member or a designee of the Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member is set forth in Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. The Member shall not be obligated to
make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed periodically to the
Member in its sole discretion. No distribution shall be declared and paid unless, after the
distribution is made, the assets of the Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely
absolutely on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in this Agreement or in resolutions duly
adopted by the Member on behalf of the Company. The officers of the Company may include a
president, vice presidents, an executive vice president, a secretary, a treasurer, and such other
officers as the Member deems appropriate. The officers of the Company will be entitled to such
compensation for their services as the Member may reasonably determine from time to time. Unless
otherwise specified by the Member, the following officers shall have the authority to engage in the
activities set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The President shall also perform
such other duties and may exercise such other powers as from time to time may be assigned to him by
this Agreement or by the Member.
2
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Executive Vice President, if there is one acting, or
in the absence of an Executive Vice President, the Vice President or the Vice Presidents if there
are more than one, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this
Agreement, Assistant Secretaries, if there are any, shall perform such duties and have such powers
as from time to time may be assigned to them by the Member, the President, any Vice President, if
there are any appointed, or the Secretary, and in the absence of the Secretary or in the event of
his disability or refusal to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a
bond in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
4.2.7 Other Officers. Such other officers as the Member may choose shall perform
such duties and have such powers as from time to time may be assigned to them by the
3
Member. The Member may delegate to any officer of the Company the power to choose such other
officers and to prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member and its officers and any officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if written
consent setting forth the action to be taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate
account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The election by the Member to dissolve the Company; or
(c) Upon the Member becoming bankrupt or the occurrence of any event that terminates the
membership of the Member in the Company as described in Section 8971(a)(4) of the Act.
(d) The entry of an order of judicial dissolution under Section 8972 of the Act.
4
6.2 Winding Up.
(a) General. Following the dissolution of the Company, the Company shall
cease to carry on its business, except insofar as may be necessary for the winding up of its
business, but the Companys separate existence shall continue until a certificate of dissolution
has been filed in accordance with Section 6.3 or until a decree dissolving the Company has been
entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor
in interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Companys liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Certificate of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, the Company shall
execute and file a certificate of dissolution with the Pennsylvania Department of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Pennsylvania shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
5
Act means the Pennsylvania Limited Liability Company Act, as set forth in § 8901 et.
seq. of the Pennsylvania Code, as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Agreement, as amended from time to time. Words such as herein,
hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole, unless the
context otherwise requires.
Certificate of Organization has the meaning given that term in Section 1.7 hereof.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement.
Member Loans has the meaning given that term in Section 2.3 hereof.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party hereto, and no such other Person shall
have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc., |
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By:
Name:
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/s/ Steven M. Helm
Steven M. Helm
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Its:
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Vice President, Legal |
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6
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Address of Member |
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Contribution |
|
Interest |
Allied Waste North America, Inc. |
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$ |
100.00 |
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100 |
% |
15880 N. Greenway-Hayden Loop, Ste. 100 |
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Scottsdale, Arizona 85260
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7
exv3w542
Exhibit 3.542
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GREENWOOD LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the
Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, do hereby
certify as follows:
I. The name of the limited partnership is Greenwood Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The name of the Partnerships registered agent for service of process in
the State of Delaware at such address is The Corporation Trust Company.
III. The name and mailing address of each general partner is as follows:
Allied Waste Landfill Holdings, Inc.
15880 N. Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Limited
Partnership of Greenwood Landfill TX, LP, as of November 1, 2000.
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ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, General Partner
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By: |
/s/ Donald W. Slager
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Donald W. Slager, President |
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exv3w543
Exhibit 3.543
AGREEMENT OF LIMITED PARTNERSHIP OF
GREENWOOD LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of November 8, 2000, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and ALLIED
WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Greenwood Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited
Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION
2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except
upon the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage
Interests at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion
to their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or
renewals of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the General Partner deems appropriate. The
officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be
treated as the transferee of a Limited Partner, and shall have the right to become a Substituted
Limited Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases
to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has
no General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership
and its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of
the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and
its business without dissolution pursuant to Section 9.2 hereof in the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court- appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other
than those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as
the Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to
time specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify
in any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
8
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as
a Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms
of this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
9
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., |
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Allied Waste Systems Holdings, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White
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Its:
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Secretary
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Its:
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Secretary |
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10
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Limited Partner:
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$ |
990.00 |
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99 |
% |
Allied Waste Systems Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w544
Exhibit 3.544
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 04:00 PM 12/12/2001 |
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010637008 - 3467833 |
CERTIFICATE OF LIMITED PARTNERSHIP
OF
GULF WEST LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware
Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies
as follows:
I. The name of the limited partnership is Gulf West Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name
of the Partnerships registered agent for service of process in the State of Delaware at
such address is The Corporation Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited
Partnership of Gulf West Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings, Inc., a Delaware corporation, its General Partner
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By: |
/s/ Jo Lynn White
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Name: |
Jo Lynn White |
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Title: |
Secretary |
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exv3w545
Exhibit 3.545
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
GULF WEST LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Gulf West TX, LP (the First
Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste Landfill
Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste Systems
Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Gulf West Landfill TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State on December 12, 2001, and the related Agreement of Limited Partnership of Gulf
West Landfill TX, LP, dated as of December 12, 2001 (the Agreement) between AWLH and BFI Waste
Systems of North America, Inc., a Delaware corporation (BFINA). Unless specifically defined
herein, capitalized terms appearing in this First Amendment shall have the meanings given those
terms in the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the Partnership to
AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited partner
of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of BFINAs interest in the Partnership to
AWSH and (b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment,
all terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc., a Delaware corporation General Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc., a Delaware corporation Limited Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste Systems Holdings, Inc.
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99 |
% |
15880 N. Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 N. Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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TOTAL
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100 |
% |
-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
GULF WEST LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and
between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and
BFI WASTE SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the
following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Gulf West Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION
3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION
5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right to
receive distributions and allocations with respect to its Partnership interest, shall be treated as
the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the Partners,
a certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White
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Its:
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Secretary
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Its:
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Secretary |
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10
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Limited Partner:
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$ |
990.00 |
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99 |
% |
BFI Waste Systems of North America, Inc. |
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15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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exv3w546
Exhibit 3.546
FILED
95 MAY- 4 PM 3:55
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES
OF INCORPORATION
OF
GULFCOAST WASTE SERVICE, INC.
ARTICLE I NAME
The name of this corporation is GULFCOAST WASTE SERVICE, INC.
ARTICLE II PURPOSE
The corporation shall be authorised to transact all legal business of any nature.
ARTICLE III CAPITAL STOCK
The
capital stock authorized, the par value thereof, and the class of such stock shall be as
follows:
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Number of Shares |
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Par Value Per |
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Class of |
Authorized |
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Share |
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Stock |
1,000
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$1.00
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Common |
ARTICLE IV PREEMPTIVE RIGHTS
Every shareholder, upon the sale for cash of any new stock of this corporation of the same
kind, class or series as that which he already holds, shall have the
right to purchase his prorata
share thereof (as nearly as may be done without issuance of fractional shares) at the price at
which it is offered to others.
ARTICLE V INITIAL REGISTERED
OFFICE AND AGENT
The street address of the initial principal and mailing office of this corporation is:
200 East Las Olas Blvd., Suite 1420
Ft.
Lauderdale, FL 33301
1
and the
name and address of the initial registered agent of this corporation is:
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Name |
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Address |
Ronald R. Fieldstone
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2601 S. Bayshore Drive |
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Suite 1600 |
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Miami, Florida 33133 |
ARTICLE VI COMMENCEMENT
This corporation shall commence on the date on which these Articles are filed with the
Secretary of State.
ARTICLE VII INITIAL
BOARD OF DIRECTORS
This corporation shall have one director initially. The number of directors may be either
increased or diminished from time to time by the By-Laws, but shall never be less than one. The
names and addresses of the initial directors of this corporation are:
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Name |
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Address |
Harris W. Hudson
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200 East Las Olas Blvd. |
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Suite 1420 |
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Ft. Lauderdale, FL 33301 |
ARTICLE VIII INCORPORATOR
The name and address of the person signing these Articles of Incorporation is;
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Name |
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Address |
Harris W. Hudson
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200 East Las Olas Blvd. |
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Suite 1420 |
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Ft. Lauderdale, FL 33301 |
ARTICLE IX BY-LAWS
The power to alter, amend or repeal By-Laws shall be vested in the Board of Directors and
the shareholders.
2
ARTICLE X INDEMNIFICATION
The corporation shall indemnify any officer or director, or any former officer or director, to
the fullest extent permitted by law.
ARTICLE
XI AMENDMENT
This corporation reserves the right to amend or repeal any provisions contained in these
Articles of Incorporation, or any amendment thereto, and any right conferred upon the
shareholders is subject to this reservation.
IN WITNESS WHEREOF, the undersigned subscriber has executed these Articles of Incorporation
this 13 day of April, 1995.
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/s/ Harris W. Hudson
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Harris W. Hudson |
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Subscriber and Director |
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STATE OF FLORIDA
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) |
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) ss. |
COUNTY OF BROWARD
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) |
BEFORE ME, the undersigned authority, authorized to take acknowledgments in the State and
County set forth above, personally appeared Harris W. Hudson, who is
known to me or
who has produced as
identification and who did take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, in the State and
County aforesaid, this 13 day of April, 1995.
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/s/ Joanne T. Elliott |
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Signature
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/s/ Joanne T. Elliott |
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Print (Notarys Name)
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Notary Public, State of Florida |
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Notarial Seal:
3
exv3w547
Exhibit 3.547
AMENDED AND RESTATED BYLAWS
OF
GULFCOAST WASTE SERVICE, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w548
Exhibit 3.548
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 12/14/2000 |
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001627758 - 3330104 |
CERTIFICATE OF FORMATION
OF
H LEASING COMPANY, LLC
1. |
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Name. The name of the limited liability company is H Leasing Company, LLC. |
2. |
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Registered Office and Agent. The address of its registered office in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its registered agent at such address is Corporation Service Company. |
3. |
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Authorized Person. The name and address of the authorized person is Richard B.
Goldstein, Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New
York, New York 10004. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of H Leasing
Company, LLC this 14th day of December, 2000.
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/s/ Richard B. Goldstein
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Richard B. Goldstein |
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Authorized Person |
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CERTIFICATE OF AMENDMENT
OF
H LEASING COMPANY, LLC
1. The name of the limited liability company is H Leasing Company, LLC.
2. The Certificate of Formation of the limited liability company is
hereby amended as follows:
The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of H Leasing
Company, LLC this 15th day of February, 2001.
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ALLIED WASTE NORTH AMERICA,
INC., a Delaware corporation,
Sole Member
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By: |
/s/ Steven M. Helm
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Steven M. Helm |
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Vice President, Legal |
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STATE OF DELAWARE
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 02:00 PM 03/01/2001 |
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010104717 3330104 |
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exv3w549
Exhibit 3.549
Admission of Substituted Member
Reference is made to the Limited Liability Company Agreement of H Leasing Company, LLC, a
Delaware limited liability company, dated as of April 30, 2001 (the Agreement), by and among
American Ref-Fuel Company of Hempstead, a New York general partnership (Transferor Member) and
Allied Waste North America, Inc., a Delaware corporation (the Manager). On the date hereof,
Transferor Member transferred its Interest (as defined in the Agreement) in H Leasing Company, LLC
to BFI Energy Systems of Hempstead, Inc., a Delaware corporation (the Transferee). Terms not
defined herein shall have the meaning given such terms in the Agreement.
Pursuant to Section 10.6 of the Agreement, the Manager hereby consents to the admission of the
Transferee to H Leasing Company, LLC and confirms that all requirements set forth in the Agreement
for the admission of this substituted member have been complied with or otherwise waived.
The Transferee hereby becomes a party to the Agreement and hereby accepts and assumes all
rights and obligations of the Transferor Member with respect to the Transferred Interest (as
defined in the Agreement) set forth therein.
Dated: April 30, 2002
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BFI ENERGY SYSTEMS OF HEMPSTEAD, INC.
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By: |
/s/ Dale L. Parker
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Name: DALE L. PARKER |
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Title: VICE PRESIDENT |
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Acknowledged and agreed:
ALLIED WASTE NORTH AMERICA, INC.
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By:
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/s/ Thomas P. Martin |
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Name: THOMAS P. MARTIN
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Title: TREASURER |
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LIMITED LIABILITY COMPANY AGREEMENT
OF H LEASING COMPANY, LLC
By and Among
AMERICAN REF-FUEL COMPANY OF HEMPSTEAD
and
ALLIED WASTE NORTH AMERICA, INC.
as Members,
and Managers
THE INTERESTS (AS DEFINED HEREIN) HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS AND NEITHER
THE INTERESTS NOR ANY BENEFICIAL INTEREST THEREIN MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (OTHER THAN AS A RESULT OF EXERCISE OF THE PUT OPTION OR THE CALL OPTION (AS DEFINED
HEREIN)) EXCEPT UPON DELIVERY TO THE COMPANY OF A TRANSFEROR CERTIFICATE AND A TRANSFEREE
CERTIFICATE AS HEREIN PROVIDED AND AS PERMITTED BY THE FOLLOWING SENTENCES. EACH MEMBER (AS DEFINED
HEREIN), BY ITS EXECUTION OF THIS AGREEMENT (AS DEFINED HEREIN), REPRESENTS, ACKNOWLEDGES AND
AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER ITS INTEREST EXCEPT (A)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE AND, IF REQUESTED
BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY); (B)
TO THE COMPANY OR ITS AFFILIATES; OR (C) PURSUANT TO THE EXERCISE OF THE PUT OPTION OR THE CALL
OPTION, AS THE CASE MAY BE, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES AND ANY OTHER JURISDICTION.
TABLE OF CONTENTS
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Page |
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ARTICLE I THE COMPANY |
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1 |
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1.1 Formation |
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1 |
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1.2 Name |
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1 |
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1.3 Purposes; Powers |
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1 |
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1.4 Principal Place of Business |
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2 |
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1.5 Term |
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2 |
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1.6 Filings; Agent for Service of Process |
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2 |
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1.7 Title to Properties |
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3 |
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1.8 Payments of Individual Obligations |
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3 |
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1.9 Independent Activities; Transactions with Affiliates |
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3 |
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1.10 Definitions |
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4 |
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1.11 Other Terms |
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14 |
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ARTICLE II MEMBERS CAPITAL CONTRIBUTIONS |
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15 |
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2.1 Capital Contributions |
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15 |
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ARTICLE III ALLOCATIONS |
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16 |
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3.1 Profits |
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16 |
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3.2 Losses |
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16 |
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3.3 Special Allocations |
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16 |
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3.4 Curative Allocations |
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17 |
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3.5 Other Allocation Rules |
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18 |
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3.6 Tax Allocations: Code Section 704(c) |
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18 |
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ARTICLE IV DISTRIBUTIONS |
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19 |
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4.1 Distributions |
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19 |
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4.2 Amounts Withheld |
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20 |
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4.3 Limitations on Distributions |
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20 |
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ARTICLE V MANAGEMENT |
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20 |
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5.1 The Manager |
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20 |
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5.2 Restrictions on Authority of the Manager |
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22 |
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5.3 Special Provisions Following Occurrence of Bankruptcy of Manager |
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24 |
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- i -
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5.4 Duties and Obligations of the Manager and the Special Purpose Manager |
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24 |
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5.5 Management Fee/Expenses |
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25 |
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ARTICLE VI ROLE OF MEMBERS |
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26 |
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6.1 Rights or Powers |
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26 |
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6.2 Meetings of the Members |
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26 |
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6.3 Withdrawal/Resignation |
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27 |
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6.4 Member Compensation |
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27 |
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6.5 Members Liability |
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27 |
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6.6 Partition |
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27 |
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6.7 Transactions Between a Member and the Company |
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28 |
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6.8 Other Instruments |
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28 |
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6.9 Other Covenants |
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28 |
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ARTICLE VII INDEMNIFICATIONS |
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29 |
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7.1 Indemnification of the Company, the Managers and the Members |
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29 |
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7.2 Indemnification Procedures |
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30 |
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ARTICLE VIII ACCOUNTING, BOOKS AND RECORDS |
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32 |
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8.1 Accounting, Books and Records |
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32 |
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8.2 Reports |
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33 |
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8.3 Tax Matters |
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34 |
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ARTICLE IX AMENDMENTS |
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35 |
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9.1 Amendments |
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35 |
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ARTICLE X TRANSFERS |
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36 |
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10.1 Restrictions on Transfers |
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36 |
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10.2 Permitted Transfers |
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36 |
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10.3 Conditions to Permitted Transfers |
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36 |
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10.4 Prohibited Transfers |
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37 |
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10.5 Rights of Unadmitted Assignees |
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38 |
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10.6 Admission of Substituted Members |
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38 |
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10.7 Distributions and Allocations in Respect of Transferred Interests |
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38 |
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ARTICLE XI [Intentionally deleted] |
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39 |
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ARTICLE XII DISSOLUTION AND WINDING UP |
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39 |
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12.1 Dissolution Events |
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39 |
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12.2 Winding Up |
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40 |
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12.3 Alternative Methods of Distributions |
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41 |
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12.4 Rights of Members |
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42 |
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12.5 Notice of Dissolution/Termination |
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42 |
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12.6 Allocations During Period of Liquidation |
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42 |
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12.7 Character of Liquidating Distributions |
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43 |
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12.8 The Liquidator |
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43 |
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12.9 Form of Liquidating Distributions |
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43 |
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ARTICLE XIII |
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44 |
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CERTAIN REPRESENTATIONS AND COVENANTS |
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44 |
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ARTICLE XIV MISCELLANEOUS |
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45 |
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14.1 Notices |
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45 |
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14.2 Binding Effect |
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46 |
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14.3 Construction |
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46 |
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14.4 Headings |
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46 |
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14.5 Severability |
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46 |
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14.6 Incorporation by Reference |
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46 |
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14.7 Governing Law |
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47 |
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14.8 Waiver of Jury Trial |
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47 |
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14.9 Counterpart Execution |
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47 |
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14.10 Specific Performance |
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47 |
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14.11 Consent to Jurisdiction |
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47 |
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14.12 Nature of Interest |
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48 |
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Exhibit A-1
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Form of Transferor Certificate |
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Exhibit A-2
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Form of Transferee Certificate |
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Exhibit B
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Form of Capital Expenditures/In-Service Dates |
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Exhibit C
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Form of Master Lease |
- iii -
LIMITED LIABILITY COMPANY AGREEMENT
OF
H LEASING COMPANY, LLC
This LIMITED LIABILITY COMPANY AGREEMENT of H Leasing Company, LLC is entered into and shall
be effective as of April 30, 2001, by and among American Ref-Fuel Company of Hempstead, a New York
general partnership (the Ref-Fuel Company) and Allied Waste North America, Inc., a Delaware
company (AWP), each of which has executed this Agreement as a Member and as the Manager and the
Special Purpose Manager, respectively, on the following terms and conditions:
ARTICLE I
THE COMPANY
1.1 Formation.
The Company has been formed on December 14, 2000, upon the filing of the Certificate with the
Secretary of State of the State of Delaware. The rights and liabilities of the Members and Managers
shall be as provided under the Act, the Certificate and this Agreement.
1.2 Name.
The name of the Company is H Leasing Company, LLC and all business of the Company shall be
conducted in such name. The Manager may change the name of the Company upon ten (10) Business Days
notice to the Members; provided that the name of the Company shall not include or be substantially
similar to the name of any Member or any Affiliate of any Member.
1.3 Purposes; Powers.
(a) The purposes of the Company are limited solely (i) to acquiring,
owning, leasing, managing, conserving, maintaining, protecting, servicing and selling,
transferring, pledging or hypothecating or otherwise dispose of investments in Garbage Trucks and
Other Assets which, when held by the Company shall be held by the Company solely for lease to third
parties, and (ii) to engaging in activities incidental to the purposes set forth in clause (i).
- 1 -
(b) In connection with Section 1.3(a)(i), the Company will enter into binding commitments to
purchase assets consistent with the dollar amounts and in service dates shown in Exhibit B.
(c) The Company has the power to do any and all acts necessary, appropriate, proper,
advisable, incidental or convenient to or in furtherance of the purposes of the Company set forth
in Section 1.3(a) and has, without limitation, any and all powers that may be exercised on behalf
of the Company by any Manager pursuant to Article V hereof.
1.4 Principal Place of Business.
The principal place of business of the Company is at 15880 North Greenway-Hayden Loop, Suite
100, Scottsdale, Arizona 85260. The Manager may change the principal place of business of the
Company to any other place upon ten (10) Business Days notice to the Members. The registered office
of the Company in the State of Delaware initially is located at Corporation Service Company, 2711
Centerville Road, Wilmington, New Castle County, Delaware 19808.
1.5 Term.
The term of the Company commenced on the date the Certificate is filed in the office of the
Secretary of State of the State of Delaware in accordance with the Act and shall continue until the
winding up and liquidation of the Company and its business are completed following a Dissolution
Event, as provided in Article XII.
1.6 Filings; Agent for Service of Process.
(a) The Certificate of the Company has been filed in the office of the Secretary of State of
the State of Delaware in accordance with the Act. The Manager shall take any and all other actions
reasonably necessary to perfect and maintain the status of the Company as a limited liability
company under the laws of the State of Delaware, including the preparation and filing of such
amendments to the Certificate and such other assumed name certificates, documents, instruments and
publications as may be required by law, including, without limitation, action to reflect a
correction of false or erroneous statements in the Certificate or the desire of the Members to make
a change in any statement therein in order that it shall accurately represent the agreement among
the Members.
(b) The Members and the Manager shall execute and cause to be filed original or amended
certificates and shall take any and all other actions as may be reasonably necessary to perfect and
maintain the status of the Company as a limited liability company or similar type of entity under
the laws of any other jurisdictions in which the Company engages in business.
- 2 -
(c) The registered agent for service of process on the Company in the State of Delaware shall
be Corporation Service Company, 2711 Centerville Road, Wilmington, New Castle County, Delaware
19808 or any successor as appointed by the Manager.
(d) Upon the dissolution and completion of the winding up and liquidation of the Company in
accordance with Article XII, the Manager shall promptly execute and cause to be filed a Certificate
of Cancellation in accordance with the Act and the laws of any other jurisdictions in which the
Manager deems such filing necessary or advisable.
1.7 Title to Properties.
All Properties owned by the Company shall be owned by the Company as an entity and no Member
shall have any ownership interest in such Properties in its individual name, and each Members
interest in the Company shall be personal property for all purposes. At all times after the
Effective Date, the Company shall hold title to all of its Properties in the name of the Company
and not in the name of any Member.
1.8 Payments of Individual Obligations.
The Companys credit and assets shall be used solely for the benefit of the Company, and
no asset of the Company shall be Transferred or encumbered for or in payment of any
individual obligation of any Member.
1.9 Independent Activities; Transactions with Affiliates.
(a) The Manager shall be required to devote such time to the affairs of the Company as may be
necessary to manage and operate the Company, and the Manager and the Special Purpose Manager shall
be free to serve any other Person or enterprise in any capacity whether or not any such activity
may be competitive or in conflict with the interests of the Company.
(b) Each Member acknowledges that each Manager, each Member and the Affiliates of each of them
are free to engage or invest in an unlimited number of activities or businesses, any one or more of
which may be related to the activities or businesses of the Company or competitive or in conflict
with the interests of the Company, without having or incurring any obligation to offer any interest
in such activities or businesses to the Company or any Member, and neither this Agreement nor any
activity undertaken pursuant hereto shall prevent any Member or Manager or their Affiliates from
engaging in such activities, or require any Member or Manager to permit the Company or any Manager
or Member or its Affiliates to participate in any such activities, and as a material part of the
consideration for the execution of this Agreement by each Member, each Member hereby waives,
relinquishes, and renounces any such right or claim of participation.
- 3 -
(c) To the extent permitted by applicable law and subject to the provisions of this
Agreement, the Manager is hereby authorized to cause the Company to purchase Properties from, sell
Properties to or otherwise deal with the Manager acting on its own behalf, any Member or any
Affiliate of the Manager or any Member; provided (i) any affiliate transaction that relates to
purposes set forth in Section 1.3(a)(i) shall be on terms no less favorable to the Company than
those that would have been entered into with unrelated third parties; and (ii) any affiliate
transactions other than those set forth in clause (i) above, shall not be entered into without the
consent of the Special Purpose Manager.
1.10 Definitions.
Capitalized words and phrases used in this Agreement have the following meanings:
Accredited Investor means a Person that is an accredited investor as defined in Rule
501(a)(1), (2) or (3) under Regulation D of the Securities Act.
Act means the Delaware Limited Liability Company Act, 6 Del. C. § 18-10 1, et seq., as
amended from time to time (or any corresponding provisions of succeeding law).
Adjusted Capital Account Deficit means, with respect to any Member, the deficit balance, if
any,
in such Members Capital Account as of the end of the relevant Allocation Year, after giving
effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Member is obligated to
restore pursuant to any provision of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences in Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations; and
(ii) Debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the
provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
Affiliate means, with respect to any Person, an affiliate within the meaning of Rule 12b-2
of the Securities Exchange Act of 1934, as amended; provided, however, that unless the context
specifically required a contrary interpretation, Ref-Fuel Company shall not be deemed to be an
Affiliate of Duke/UAE, Allied or any of their respective Affiliates.
- 4 -
Agreement means this Limited Liability Company Agreement of H Leasing Company, LLC, as
amended, supplemented or otherwise modified from time to time. All references in this Agreement to
Section or Sections are to a section or sections of this Agreement unless otherwise specified.
Allocation Year means (i) the period commencing on the Effective Date and ending on December
31, 2000, (ii) any subsequent twelve (12) month period commencing on January 1 and ending on
December 31 or (iii) any portion of the period described in clauses (i) or (ii) for which the
Company is required to allocate Profits, Losses and other items of Company income, gain, loss or
deduction pursuant to Article III.
Bankruptcy means, with respect to any Person, a Voluntary Bankruptcy or an Involuntary
Bankruptcy. A Voluntary Bankruptcy means, with respect to any Person (i) an admission in writing
by such Person of its inability to pay its debts generally or a general assignment by such Person
for the benefit of creditors, (ii) the filing of any petition or answer by such Person seeking to
adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of such Person or its
debts under any present or future bankruptcy, insolvency or similar statute, law or regulation, or
seeking, consenting to, or acquiescing in the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for such Person or for any substantial part
of its Properties or (iii) action taken by such Person to authorize any of the actions set forth
above. An Involuntary Bankruptcy means, with respect to any Person, without the consent or
acquiescence of such Person, the entering of an order for relief or approval of a petition for
relief or reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other similar relief under any present or
future bankruptcy, insolvency or similar statute, law or regulation, or the filing of any such
petition against such Person which petition shall not be dismissed within ninety (90) days, or
without the consent or acquiescence of such Person, the entering of an order for relief or the
appointment of a trustee, custodian, receiver or other similar official of such Person or of all or
any substantial part of the Properties of such Person which order shall not be dismissed within
ninety (90) days. The Members hereby agree that this definition shall supersede the definition of
bankruptcy set
forth in Section 18-304 of the Act for all purposes of this Agreement.
Business Day means a day of the year except Saturday, Sunday or any other day on which
commercial banks are not required or authorized by law to close in the states of New York,
Arizona, New Jersey or Texas.
Call Option means the Partnership Call (as defined in the Second Amended and Restated
Partnership Agreement of American Ref-Fuel Company of Hempstead, dated as of April 30, 2001).
- 5 -
Capital Account means, with respect to any Member, the Capital Account maintained for
such Member in accordance with the following provisions:
(i) To each Members Capital Account there shall be credited (A) such Members
Capital Contributions, (B) such Members distributive share of Profits and any items in the
nature of income or gain which are specially allocated pursuant to Section 3.3 or Section
3.4, and (C) the amount of any Company liabilities assumed by such Member or which are
secured by any Properties distributed to such Member;
(ii) To each Members Capital Account there shall be debited (A) the amount of
money and the Gross Asset Value of any Properties distributed to such Member pursuant to
any provision of this Agreement, (B) the amount of any liabilities of such Member which
have been assumed by the Company or which are secured by any properties contributed by the
Member to the Company and (C) such Members distributive share of Losses and any items in
the nature of expenses or losses which are specially allocated pursuant to Section 3.3 or
Section 3.4;
(iii) In the event all or any portion of an Interest is Transferred in accordance
with the terms of this Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the Transferred Interest; and
(iv) In determining the amount of any liability for purposes of subparagraph (i)
above, there shall be taken into account Code Section
752(c) and any other applicable
provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and
shall be interpreted and applied in a manner consistent with such Regulations. In the event the
Manager shall determine that it is necessary to modify the manner in which the Capital Accounts, or
any debits or credits thereto (including, without limitation, debits or credits relating to
liabilities which are secured by contributed or distributed property or which are assumed by the
Company or any Members), are computed in order to comply with such Regulations, the Manager may
make such modification; provided that it shall not affect the amounts distributable to any Person
under this Agreement. The Manager also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Members and the amount of
capital reflected on the Companys balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-l(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with Regulations Section
1.704-l(b); provided that such adjustments under clause (i) or
- 6 -
modifications under clause (ii) shall not affect the amounts distributable to any Person under this
Agreement.
Capital Contributions means, with respect to any Member, the amount of money or the Gross
Asset Value of other Property contributed to the Company with respect to the Interest in the
Company held or purchased by such Member.
Certificate means the certificate of formation filed with the Secretary of State of the
State of Delaware pursuant to the Act to form the Company, as originally executed and amended,
modified, supplemented or restated from time to time, as the context requires.
Certificate of Cancellation means a certificate filed in accordance with 6 Del.
C.§ 18-203.
Code means the United States Internal Revenue Code of 1986, as amended from time to time.
Company means H Leasing Company, LLC and the limited liability company continued hereunder
and continuing the business of this Company in the event of dissolution of the Company as herein
provided if the Members elect to reconstitute pursuant to Section 12.1(b).
Company Minimum Gain has the meaning given the term partnership minimum gain in
Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
Credit Agreement means the Credit Agreement dated as of April 30, 2001, among the Company,
the other Credit Parties signatory thereto, GECC, as lender, and as agent for Lenders, and the
other Lenders signatory thereto from time to time.
Damages means any and all judgments, damages or penalties with respect to, or amounts paid
in settlement of, claims (including, but not limited to negligence, strict or absolute liability,
liability in tort and liabilities arising out of violation of laws or regulatory requirements of
any kind), actions, or suits, and, to the extent suffered or incurred in connection with the
foregoing, taxes (including, without limitation, taxes on any indemnification payments and
including interest, additions to tax and penalties), liabilities, obligations, and reasonable
costs, expenses and disbursements (including, without limitation, reasonable legal fees and
expenses).
Debt of any Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind (except deposits and advances in
the ordinary course of business), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such
- 7 -
Person under conditional sale or other title retention agreements relating to property or assets
purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred
purchase price of property or services (other than accounts payable incurred in the ordinary course
of business and paid when due), (f) all Debt of others secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property owned
or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such Person, and (h) all other obligations
of such Person which have the same effect as any of the foregoing.
Deemed Refund has the meaning set forth in Section 7.2(e).
Depreciation means, for each Allocation Year, an amount equal to the depreciation,
amortization, or other cost recovery deduction allowable with respect to an asset for such
Allocation Year, except that (x) with respect to any asset whose Gross Asset Value differs from its
adjusted tax basis for federal income tax purposes and which difference is being eliminated by use
of the remedial method defined by Regulations Section 1.704-3(d), Depreciation for such
Allocation Year shall be the amount of book basis recovered for such Allocation Year under the
rules prescribed by Regulations Section 1.704-3(d)(2), and (y) with respect to any other asset
whose Gross Asset Value differs from its adjusted basis for federal income tax purposes at the
beginning of such Allocation Year, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such Allocation Year bears to such beginning adjusted tax basis;
provided, however, that if the adjusted basis for federal income tax purposes of an asset at the
beginning of such Allocation Year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Tax Matters Member.
Dissolution Event has the meaning set forth in Section 12.1.
Economic Interest means any interest in the capital or profits of the Company (including,
without limitation, any Interest) or any financial instrument or contract the value of which is
determined in whole or in part by reference to the Company.
Effective Date means the date hereof.
Financing means the financing transaction contemplated in the Credit Agreement
and the Security Agreement.
Fiscal Year means (i) the period commencing on the Effective Date and ending on December 31,
2000, (ii) any subsequent twelve-month period commencing on January 1 and ending on December 31 and
(iii) the period commencing on the
- 8 -
immediately preceding January 1 and ending on the date on which all the Properties are distributed
to the Members pursuant to Section 12.2.
GAAP means generally accepted accounting principles in effect in the United States of
America from time to time.
Garbage Trucks means the municipal solid waste collection or disposal vehicles (garbage
trucks) purchased by the Company from time to time and any replacements or substitutions there for
in accordance with the Lease.
GECC means General Electric Capital Corporation.
Gross Asset Value means with respect to any asset, the assets adjusted basis for federal
income
tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Member to the
Company will be the gross fair market value of such asset as determined pursuant to
sub-paragraph (iv) below;
(ii) The Gross Asset Values of all Company assets shall be adjusted to equal
their respective gross fair market values (taking Code Section 7701(g) into account), as
determined pursuant to sub-paragraph (iv) below, upon admission of a new Member to the
Company via a Capital Contribution, upon liquidation of a Members Interest, or upon
liquidation of the Company within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g);
and
(iii) Except as otherwise provided in subparagraph (ii), the Gross Asset Value of
any item of Company assets distributed to any Member shall be adjusted to equal the gross
fair market value (taking Code Section 7701(g) into account) of such asset on the date of
distribution as determined pursuant to sub-paragraph (iv) below.
(iv) For purposes of this definition, the gross fair market value of any asset
shall be equal to (A) if the Members elect to appraise such asset, the fair market value of
such asset as determined by appraisal, or (B) for any asset listed below, the original cost
of such asset reduced by the economic depreciation of such asset calculated at the
specified percentage per month (prorated based on the number of days in such month for
calculations made other than on the last day of a month), or for any other asset, the
adjusted tax basis of such asset as of the date of determination. For this purpose, the
assets subject to economic depreciation and the specified monthly depreciation percentages
shall be as follows:
- 9 -
|
|
|
|
|
Garbage Trucks |
|
|
.83 |
% |
Commercial
Containers and Other Equipment |
|
|
.83 |
% |
Residential
Containers and Compactors |
|
|
1.67 |
% |
Yellow Iron |
|
|
1.04 |
% |
If the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (i),
(ii) or (iii), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Profits and Losses.
Indemnified Matter has the meaning set forth in Section 7.2(b).
Indemnitee has the meaning set forth in Section 7.2(b).
Indemnitor has the meaning set forth in Section 7.2(b).
Interest means any interest in the Company representing some or all of the Capital
Contributions made by a Member, including any and all benefits to which the holder of such an
interest may be entitled as provided in this Agreement and to the extent not inconsistent herewith,
the Act, together with all obligations of such Person to comply with the terms and provisions of
this Agreement.
Involuntary
Bankruptcy has the meaning set forth in the definition of Bankruptcy.
Lease means the Master Lease Agreement dated as of April 30, 2001 between the Company, as
the lessor, and the various subsidiaries of Allied Waste, as the Lessees, as amended, supplemented
or otherwise modified from time to time pursuant to Section 5.2, together with all the lease
supplements there under.
Lessee shall have the meaning set forth in Exhibit C.
Lien means any lien, mortgage, deed of trust, encumbrance, pledge, charge, lease,
easement, right of others or security interest of any kind, including any thereof arising
under conditional sales or other title retention agreements.
Liquidation Period has the meaning set forth in Section 12.7.
Liquidator has the meaning set forth in Section 12.9(a).
Losses has the meaning set forth in the definition of Profits and Losses.
- 10 -
Manager means AWP or any Permitted Transferee of AWPs entire Interest as a Member as
constituted at the time of the Transfer provided that such Permitted Transferee is admitted as a
Member pursuant to this Agreement.
Material Adverse Effect on the Company means an effect on the Company that is materially
adverse to the business, operations, properties, assets, financial condition, prospects or results
of operations of the Company and its businesses and assets taken as a whole, or on the consummation
of the Redemption.
Member means any Person (i) who is referred to as such in the first paragraph of this
Agreement, or who has become a substituted Member pursuant to the terms of this Agreement and (ii)
who has not ceased to be a Member. Members means all such Persons.
Member Nonrecourse Debt has the same meaning as the term partner nonrecourse
debt in Section 1.704-2(b)(4) of the Regulations.
Member Nonrecourse Debt Minimum Gain means an amount, with respect to each Member
Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in
accordance with Section 1.704-2(i)(3)
of the Regulations.
Modification means, with respect to any Garbage Trucks, Other Assets, or any Part thereof,
(a) any addition, alteration, improvement or modification thereto, (b) the addition, betterment or
enlargement of any property constituting part of such property or the replacement of any such
property with other property, irrespective of whether (i) such replacement property constitutes an
enlargement or betterment of the property that it replaces or (ii) the cost of such addition,
betterment, enlargement or replacement is or may be capitalized in accordance with GAAP and (c)
improvements to the extent constructed as a Modification pursuant to the Lease.
Nonrecourse Liability has the meaning set forth in Section 1.704-2(b)(3) of the Regulations.
Other
Assets means construction equipment (i.e., yellow iron), commercial and residential
containers, compactors and other waste management equipment (i.e., trash and/or recyclables balers;
service vehicles; pick-up trucks; transfer tractors and trailers; portable toilet trucks; portable
toilets; forklifts; bobcats and small loaders; container delivery vehicles; and sweepers) acquired
by the Company from time to time and any replacements or substitutions there for, if applicable, in
accordance with the Lease.
Parent of any Person means any Affiliate of such Person directly or indirectly controlling
such Person.
- 11 -
Parts means appliances, parts, instruments, appurtenances, accessories and equipment
of whatever nature, whether or not constituting Modifications.
Percentage Interest means, with respect to any Member, the Percentage Interest of such
Member as set forth in Section 2.1. In the event all or a portion of an Interest is Transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the Percentage
Interest of the transferor to the extent it relates to the Transferred Interest.
Permitted Transfer has the meaning set forth in Section 10.2.
Permitted Transferee has the meaning set forth in Section 10.2.
Person means any individual, partnership (whether general or limited), limited liability
company, corporation, trust, estate, association, nominee or other entity.
Prime Rate means a per annum rate that equal to the prime rate as in effect from time to
time as set forth in The Wall Street Journal.
Profits and Losses mean, for each Allocation Year, an amount equal to the Companys
taxable income or loss for such Allocation Year, determined in accordance with Code Section 703(a)
(for this purpose, all items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following
adjustments (without duplication):
(i) Any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this definition of
Profits and Losses shall be added to such taxable income or loss;
(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-l(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses
pursuant to this definition of Profits and Losses shall be subtracted from such taxable
income or loss;
(iii) In the event the Gross Asset Value of any Company asset is adjusted pursuant
to subparagraphs (ii) or (iii) of the definition of Gross Asset Value, the amount of such
adjustment shall be treated as an item of gain (if the adjustment increases the Gross Asset
Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value
of the asset) from the disposition
of such asset and shall be taken into account for purposes of computing Profits or
Losses;
- 12 -
(iv) Gain or loss resulting from any disposition of Properties with respect to
which gain or loss is recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the Properties disposed of, notwithstanding that the
adjusted tax basis of such Properties differs from its Gross Asset Value; and
(v) In lieu of the depreciation, amortization, and other cost recovery deductions
taken into account in computing such taxable income or loss, there shall be taken into
account Depreciation for such Allocation Year, computed in accordance with the definition
of Depreciation.
Properties means the Garbage Trucks, Other Assets, Modifications, cash equivalents,
cash and all other personal property acquired by the Company and shall include both tangible
and intangible property.
Put Option means the Class B Put (as defined in the Second Amended and Restated
Partnership Agreement of American Ref-Fuel Company of Hempstead, dated as of April 30, 2001).
Reconstitution Period has the meaning set forth in Section 12.1(b).
Redemption means the redemption by the Ref-Fuel Company of the partner interest of BFI
Energy Systems of Hempstead, Inc. in Ref-Fuel Company pursuant to the Second Amended and Restated
Partnership Agreement thereof.
Regulations means the Income Tax Regulations, including Temporary Regulations, promulgated
under the Code, as such regulations are amended from time to time.
Regulatory Allocations has the meaning set forth in Section 3.4.
Responsible Administrative Officers has the meaning set forth in Section 5.3(c).
Responsible Participating Officers has the meaning set forth in Section 5.3(c).
Responsible Officers means the Responsible Administrative Officers and the Responsible
Participating Officers.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
promulgated there under.
Security Agreement means the Security Agreement dated as of April 30, 2001, among H Leasing
Company, LLC, E Leasing Company, LLC, N Leasing Company, LLC
- 13 -
and S
Leasing Company, LLC, as grantors, and GECC, in its capacity as Agent for Lenders under
the Credit Agreement.
Special
Purpose Manager means Ref-Fuel Company or any
transferee of Ref-Fuel Companys
entire Interest as a partner in the Company as constituted at the time of the Transfer.
Transfer means, as a noun, any voluntary or involuntary transfer, sale, pledge or
hypothecation or other disposition and, as a verb, voluntarily or involuntarily to transfer, sell,
pledge or hypothecate or otherwise dispose of.
UCC means the Uniform Commercial Code as in effect in the states of New York and Delaware
from time to time and any other jurisdiction that has adopted similar provisions.
Voluntary Bankruptcy has the meaning set forth in the definition of Bankruptcy.
1.11 Other Terms.
Unless the content shall require otherwise:
(a) Words importing the singular number or plural number shall include the plural number and
singular number respectively;
(b) Words importing the masculine gender shall include the feminine and neuter genders
and vice versa;
(c) Reference to include, includes, and including shall be deemed to be followed by
the phrase without limitation;
(d) Reference in this Agreement to herein, hereby or hereunder, or any similar
formulation, shall be deemed to refer to this Agreement as a whole, including the Exhibits; and
(e) Reference to and and or shall be deemed to mean and/or.
- 14 -
ARTICLE II
MEMBERS CAPITAL CONTRIBUTIONS
2.1 Capital Contributions.
The name, address, amount of Capital Contribution, and Percentage Interest of each of the
Members is as follows:
|
|
|
|
|
|
|
|
|
|
|
Capital |
|
|
Percentage |
|
Name
and Address |
|
Contribution |
|
|
Interest |
|
American Ref-Fuel Company of Hempstead
|
|
$ |
115,308,120 |
|
|
|
99 |
% |
15990 North Bakers Landing #200
Houston, TX 77079
Attention: William Reynolds
Facsimile No.: (281) 649-4815 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
With copies to:
Duke/UAE
c/o United American Energy Corp.
50 Tice Boulevard
Woodcliff Lake, New Jersey 07675
Attention: Donald Krom
Facsimile No.: (201) 307-1020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allied Waste North America, Inc.
|
|
$ |
1,164,728 |
|
|
|
1 |
% |
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention : General Counsel
Facsimile No.: (480) 627-2703 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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With copies to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10006
Attention: Craig Miller
Facsimile No.: (212) 859-8587 |
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ARTICLE III
ALLOCATIONS
3.1 Profits.
After giving effect to the special allocations set forth in Sections 3.3 and 3.4 and subject
to Section 3.5, Profits for any Allocation Year shall be allocated to the Members in accordance
with their Percentage Interests.
3.2 Losses.
After giving effect to the special allocations set forth in Sections 3.3 and 3.4 and subject
to Section 3.5, Losses for any Allocation Year shall be allocated to the Members in accordance with
their Percentage Interests.
3.3 Special Allocations.
The following special allocations shall be made in the following order:
(a) Nonrecourse Deductions. Notwithstanding any other provision of this Agreement, (i)
deductions attributable to Member Nonrecourse Debt, if any, of the Company for each Allocation Year
shall
be allocated to the Member that bears the economic risk of loss within the meaning of Treas.
Reg. 1.704-2(i), and (ii) deductions attributable to Nonrecourse Liabilities of the Company, if
any, shall be allocated for each Allocation Year in the same proportion as Profits and Losses for
such Allocation Year.
(b) Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the
Regulations, notwithstanding any other provision of this Article III, if there is a net decrease in
Company Minimum Gain during any Allocation Year, each Member shall be specially allocated items of
Company income and gain for such Allocation Year (and, if necessary, subsequent Allocation Years)
in an amount equal to such Members share of the net decrease in Company Minimum Gain, determined
in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated to each Member
pursuant thereto. The items to be so allocated shall be determined in accordance with Sections
1.704-2(f) (6) and 1.704-2(j) (2) of the Regulations. This Section 3.3(a) is intended to comply
with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be
interpreted consistently therewith.
(c) Member Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i) (4) of
the Regulations, notwithstanding any other provision of this Article III, if there is a net
decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Allocation Year, each Member
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who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member
Nonrecourse Debt, determined in accordance with Section 1.704-2(i) (5) of the Regulations, shall be
specially allocated items of Company income and gain for such Allocation Year (and, if necessary,
subsequent Allocation Years) in an amount equal to such Members share of the net decrease in
Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i) (4).
Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i) (4) and 1.704-2(j) (2) of the Regulations. This
Section 3.3(b) is intended to comply with the minimum gain chargeback requirement in Section
1.704-2(i) (4) of the Regulations and shall be interpreted consistently therewith.
(d) Qualified
Income Offset. In the event any Member unexpectedly receives any
adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-l(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Company income
and gain shall be specially allocated to such Member in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of the
Member as quickly as possible; provided that an allocation pursuant to this Section 3.3(c) shall be
made only if and to the extent that the Member would have an Adjusted Capital Account Deficit after
all other allocations provided for in this Article III have been tentatively made as if this
Section 3.3 (c) were not in the Agreement.
(e) Gross Income Allocation. In the event any Member has a deficit Capital Account at the
end of any Allocation Year which is in excess of the sum of the amount such Member is deemed to be
obligated to restore pursuant to the penultimate sentences of Regulations
Sections 1.704-2(g)(1)
and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain
in the amount of such excess as quickly as possible; provided that an allocation pursuant to this
Section 3.3(d) shall be made only if and to
the extent that such Member would have a deficit Capital Account in excess of such sum after
all other allocations provided for in this Article III have been made as if Section 3.3(c) and this
Section 3.3(d) were not in the Agreement.
3.4 Curative Allocations.
The allocations set forth in Sections 3.3(a), 3.3(b), 3.3(c) and 3.3(d) (the Regulatory
Allocations) are intended to comply with certain requirements of the Regulations. It is the intent
of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of Company income, gain,
loss or deduction pursuant to this Section 3.4. Therefore, notwithstanding any other provision of
this Article III (other than the Regulatory Allocations), the Tax Matters Member shall make such
offsetting special allocations of Company income, gain, loss or deduction in whatever manner it
determines
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appropriate so that, after such offsetting allocations are made, each Members Capital Account
balance is, to the extent possible, equal to the Capital Account balance such Member would have had
if the Regulatory Allocations were not part of the Agreement and all Company items were allocated
pursuant to Sections 3.1 and 3.2.
3.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other items allocable to any
period, Profits, Losses and any such other items shall be determined on a daily, monthly or other
basis, as determined by the Tax Matters Member using any permissible method under Code Section 706
and the Regulations thereunder; provided, however, in the event there is a distribution by Ref-Fuel
Company of its Interest pursuant to the Redemption, such allocation for such Allocation Year shall
be based on the number of months preceding and succeeding such distribution in such Allocation
Year, and if such distribution occurs other than on the first day of a month, such month shall be
pro-rated based on the number of days preceding and including the date of the distribution and the
number of days following the distribution, excluding, for this purpose, any income, gain, loss or
deduction resulting from any transactions occurring in such month outside the ordinary course of
business.
(b) The Members are aware of the income tax consequences of the allocations made by this
Article III and hereby agree to be bound by the provisions of this Article III in reporting their
shares of Company income and loss for income tax purposes.
(c) Solely for purposes of determining a Members proportionate share of the excess
nonrecourse liabilities of the Company within the meaning of Regulations Section 1.752-3(a) (3),
the Members interests in Company Profits are in proportion to their Percentage Interests.
(d) To the extent permitted by Section 1.704-2(h) (3) of the Regulations, the Tax Matters
Member shall endeavor to treat distributions of cash as having been made from the proceeds of a
Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would
cause or increase an Adjusted Capital Account Deficit for any Member.
3.6 Tax Allocations: Code Section 704(c).
(a) Except as otherwise required by Code Section 704(c) and the Regulations thereunder,
each item of Company income, gain, loss and deduction shall be allocated for tax purposes, to the
extent possible, in the same manner as provided in this Article III other than this Section 3.6.
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(b) In accordance with Code Section 704(c) and the Regulations thereunder, income, gain, loss
and deduction with respect to any property contributed to the capital of the Company shall, solely
for tax purposes, be allocated among the Members so as to take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes and its initial
Gross Asset Value (computed in accordance with the definition of Gross Asset Value).
In the event the Gross Asset Value of any Company asset is adjusted pursuant to the definition
of Gross Asset Value, subsequent allocations of income, gain, loss, and deduction with respect to
such asset shall, as appropriate, take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Gross Asset Value in a manner consistent with Code
Section 704(c) and the Regulations thereunder.
Any elections or other decisions relating to such allocations shall be made by the Tax Matters
Member as provided in Section 8.3 in any manner that reasonably reflects the purpose and intention
of this Agreement.
(c) Allocations pursuant to this Section 3.6 are solely for purposes of federal, state and
local taxes and shall not affect, or in any way be taken into account in computing, any Members
Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision
of this Agreement.
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions.
The Company shall make distributions to the Members, pro rata in accordance with their
Percentage Interests, in such amounts and at such times as the Manager and the Special Purpose
Manager shall unanimously agree. Notwithstanding the foregoing, if the period for consummating the
Redemption has expired as contemplated by Article XI of the Second Amended and Restated Partnership
Agreement of
Ref-Fuel Company without the Redemption having occurred, the Company shall make
distributions to the Members, pro rata in accordance with their Percentage Interests, no later than
three business days prior to the date on which any Member (or any member of a Member) is required
to make a payment of estimated taxes in respect of any Allocation Year, in an amount equal to the
excess of (a) the product of (i) the Companys reasonable estimate of the cumulative amount of
Profits (net of any Losses) allocable to the Members for such Allocation Year through the date such
estimated taxes are due and (ii) 40% over (b) the amount of any distributions previously made to
the Members pursuant to this Section 4.1 in respect of
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such Allocation Year. Within five business days after the date the Companys income tax returns are
filed for any Allocation Year, the Company shall make a further distribution, if necessary, to the
Members, pro rata in accordance with their Percentage Interests, calculated in the same manner as
set forth in the preceding sentence, with respect to the amount of Profits (net of Losses) actually
allocated to the Members
for such Allocation Year as reflected in the filed tax returns.
4.2 Amounts Withheld.
All amounts withheld pursuant to the Code or any provision of any state, local or foreign tax
law with respect to any payment, distribution or allocation to the Company or the Members shall be
treated as amounts paid or distributed, as the case may be, to the Members with respect to which
such amount was withheld pursuant to this Section 4.2 for all purposes under this Agreement. The
Company is authorized to withhold from payments and distributions, or with respect to allocations
to the Members, and to pay over to any federal, state and local government, any amounts required to
be so withheld pursuant to the Code or any provisions of any other federal, state or local law, and
shall allocate any such amounts to the Members with respect to which such amount was withheld.
4.3 Limitations on Distributions.
(a) The Company shall make no distributions to the Members except as provided in this
Article IV and Article XII.
(b) A Member may not receive a distribution from the Company to the extent that, after giving
effect to the distribution, all liabilities of the Company, other than any liability to Members on
account of their Capital Contributions, would exceed the fair value of the Companys assets.
ARTICLE V
MANAGEMENT
5.1 The Manager.
(a) Except as otherwise provided in Sections 5.2 and 5.3, the Members intend that the
Company be managed by the Manager in accordance with Section 18-402 of the Act and with the
provisions of this Agreement.
(b) Subject to any restrictions set forth in this Agreement, the Members hereby delegate all
powers to operate and manage the business and affairs of the Company and to bind the Company to,
and all such powers shall be exclusively vested in, the Manager and
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the Manager may exercise all such powers of the Company and do all such lawful acts as are not
by statute, the Certificate or this Agreement directed or required to be exercised by the Members
and in so doing shall have the right and authority to take all actions which the Manager deems
necessary, useful or appropriate for the management and conduct of the business and affairs of the
Company, including, without limitation:
(i) all actions and activities relating to the conduct of the Companys business
and affairs;
(ii) the preparation of the Companys books, records, financial statements;
(iii) reports described in Article VIII;
(iv) any action required by Section 1.6;
(v) any termination, modification, amendment, supplementation or other change of the
Credit Agreement and the Security Agreement;
(vi) the supplementation of the Lease to add additional Garbage Trucks or Other
Assets to the equipment or other properties leased thereunder on terms and conditions no
less favorable to the Company than those provided by the Lease as the date hereof; and
(vii) investment of any cash not distributed to the Members in cash equivalents
and sale of any investments in cash equivalents for the purpose of making
distributions under this Agreement.
(c) The Manager may, from time to time, appoint one or more individuals to be officers of
the Company. The Manager shall have the power to delegate the authority granted to it pursuant to
this Section 5.1 to such officers, employees, agents and representatives of the Company as it may
from time to time deem appropriate. Any delegation of authority to take any action must be approved
in the same manner as would be required for the Manager to approve such action directly. The
Manager may, if it wishes, appoint the following officers: a President, one or more
Vice-Presidents, a Secretary, a Treasurer and may appoint other officers (including one or more
Assistant Treasurers and one or more Assistant Secretaries) as may be necessary or desirable for
the business of the Company. Any two or more offices may be held by the same person. Each officer
shall hold office until his successor shall have been duly elected and shall have qualified, or
until his death, or until he shall have resigned or have been removed, as provided in this section
5.1(c). The salaries or other compensation, if any, of the officers of the Company shall be fixed
from time to time by the Manager. Any officer of the Company may be removed, either with or without
cause, at any time, by the Manager.
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(d) The Manager shall perform its duties under this Agreement in a manner it believes to be in
the best interests of the Company, and shall be under no fiduciary duty to the Members, the Special
Purpose Manager, any creditor of the Company or any other Person. A Person who so performs its
duties shall not have any liability by reason of being or having been a Manager of the Company, the
Liquidator or the Tax Matters Member.
(e) The Manager shall not be liable under a judgment, decree or order of a court or in
any other manner for the debts, obligations or liabilities of the Company.
5.2 Restrictions on Authority of the Manager.
Except as otherwise provided in this Agreement, without the consent of both the Manager and
the Special Purpose Manager, the Manager shall not have the authority to, and covenants and
agrees that it shall not:
(a) Do any act in contravention of this Agreement or, when acting on behalf of the Company,
engage in activities inconsistent with the purposes of the Company;
(b) Do any act which would make it commercially unreasonable to carry on the ordinary business
of the Company, and the Manager shall not be required to do any such act otherwise required to be
done by it pursuant to this Agreement without the consent of all of the Members;
(c) Possess Properties, or assign rights in specific Property, for other than a Company
purpose;
(d) Perform any act that would, to the Managers knowledge, subject any Member to
liability in any jurisdiction for the debts or obligations of the Company;
(e) Cause the Company to voluntarily take any action with respect to the Company described in
clauses (i), (ii) or (iii) of the definition of Voluntary Bankruptcy in Section 1.10;
(f) Cause or permit the Company to incur, assume or obligate itself by contract for any Debt,
except for Debt incurred under the Credit Agreement;
(g) Cause or permit the Company to acquire, by purchase any assets other than Garbage Trucks,
Other Assets and Modifications and other personal property that is necessary to carry out the
purposes of the Company as set forth in Section 1.3;
(h) Cause the Company to voluntarily dissolve;
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(i) Sell, abandon or dispose of all or substantially all of the assets of the
Company;
(j) Cause the Company to change its Fiscal Year or method of accounting, unless
such change is required by GAAP, the Code or Regulations thereunder;
(k) Cause or permit the admission of any Member to the Company other than pursuant to
Article X;
(l) Cause the Company to fail to be taxable as a partnership for federal income tax
purposes or to take a position inconsistent with such treatment except as required by law;
(m) Cause or permit the Company to legally merge or consolidate with or into any Person;
(n) Cause the Company to acquire any debt or equity securities of any Member or Affiliate
of any Member or otherwise lend funds to any such Person;
(o) Cause the Company to sell, lease or distribute any asset other than in
accordance with the Lease or in the course of the liquidation of the Company;
(p) Cause the Company to incur any capital expenditures other than in connection
with the purchase of Garbage Trucks, Other Assets, the procurement of Modifications thereof
and other personal property that is necessary to carry out the purposes of the Company as set
forth in Section 1.3;
(q) Except Liens arising under the Security Agreement and applicable laws, mortgage,
hypothecate or cause the creation of any consensual lien on, or security interest in, the
Properties;
(r) Except as otherwise required by GAAP, cause the Company to take any position in its
books and records with respect to the Garbage Trucks, the Other Assets and Modifications that is
inconsistent with the treatment of the Lease as an operating lease for tax and financial
reporting purposes;
(s) Agree to the form of the Lease (other than substantially in the form of Exhibit C
hereto consistent with the financial model previously prepared by affiliates of the parties), or
once the form of the Lease has been approved, agree to any material modifications to the Lease or
change the lease rate from that shown on Exhibit C;
(t) Agree to any material modification to the Allied Finance documents (as such term is
defined in the Credit Agreement) that would have a material adverse effect
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on any Member (other than the Manager or any other Affiliate of Allied Waste) without the consent
of such adversely affected Member;
(u) Cause any Garbage Trucks, Other Assets or Modifications to be acquired by the Company
unless simultaneously with such acquisition, such assets are to be leased to a third party pursuant
to the Lease; or
(v) Cause any Other Property consisting of real property, including buildings and
fixtures, to be acquired by the Company.
5.3 Special Provisions Following Occurrence of Bankruptcy of Manager.
Notwithstanding anything contained in this Agreement to the contrary, following the occurrence
of a Bankruptcy of the Manager or any Affiliate of the Manager, all actions that the Manager would
be otherwise authorized to take under this Agreement shall require prior written consent of the
Special Purpose Manager. Such consent shall be given in the form of general authority to take
actions with a specified scope of authority.
5.4 Duties and Obligations of the Manager and the Special Purpose Manager.
(a) The Manager and the Special Purpose Manager shall cause the Company to conduct its
business and operations separate and apart from that of any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, including, without limitation, (i) segregating Company
assets and not allowing funds or other assets of the Company to be commingled with the funds or
other assets of, held by, or registered in the name of, any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, (ii) maintaining books and financial records of the
Company separate from the books and financial records of any Member, the Manager, the Special
Purpose Manager or any of their Affiliates, and observing all Company procedures and formalities,
including, without limitation, maintaining minutes of Company meetings and acting on behalf of the
Company only pursuant to authorization of the Members as required under this Agreement, (iii)
causing the Company to pay its liabilities only from available assets of the Company, and (iv)
causing the Company to conduct its dealings with third parties in its own name and as a
separate and independent entity.
(b) The Manager shall take all actions which may be necessary or appropriate (i) for the
continuation of the Companys valid existence as a limited liability company under the laws of the
State of Delaware and of each other jurisdiction in which such existence is necessary to protect
the limited liability of the Members or to enable the Company to conduct the business in which it
is engaged, and (ii) subject to the other terms and conditions of this Agreement and expressly
without any obligation to make capital contributions except as specified in Section 2.1, for the
accomplishment of the
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Companys purposes, including the acquisition, maintenance, preservation, and operation of
Properties in accordance with the provisions of this Agreement and applicable laws and regulations.
(c) On the Effective Date, the Manager and the Special Purpose Manager shall each provide to
the Company a written statement naming those of its officers that will be responsible for the
management and operations of the Company delegated to it in accordance with this Article V (such
individuals, if appointed by the Manager, the Responsible Administrative Officers and if
appointed by the Special Purpose Manager, the Responsible Participating Officers), until such
time as the Manager or the Special Purpose Manager has provided to the Company another written
statement naming other officers as Responsible Officers, and the Manager and the Special Purpose
Manager each hereby covenant and agree that its Responsible Officers shall maintain the
separateness of the Companys operations and otherwise comply with all of the terms of this
Agreement. On the Effective Date, the initial Responsible Administrative Officers shall be as
follows: Don W. Slager, President; Jeffrey Hughes, Vice-President; Jo Lynn White, Secretary; Jenny
L. Apker, Assistant Secretary; Thomas P. Martin, Treasurer. The initial Responsible Administrative
Officers shall hold office unless and until such time as the Manger has provided the Company with a
written statement naming other officers as Responsible Administrative Officers in accordance with
this Article V.
(d) The Manager shall notify the Members of the occurrence of any Dissolution Event described
in Section 12.1 or any event which with notice or lapse of time or both would constitute a
Dissolution Event (other than the event described in Section 12.1(a)(i)) and the action which the
Manager has taken or proposes to take with respect thereto, promptly, but no later than ten (10)
Business Days, after any Responsible Administrative Officer has actual knowledge of such
occurrence.
(e) All distributions or payments of cash to the Members pursuant to any provision of this
Agreement shall be made by wire transfer of immediately available funds, no later than 1:00 p.m.,
Eastern Standard Time, on the day of distribution or payment, and, at the time of any such
distribution or payment, the Manager shall provide to the Members a notice identifying the nature
of the distribution or payment, the Section or Sections of this Agreement pursuant to which it is
being made and the amount being distributed or paid pursuant to each such Section.
5.5 Management Fee/Expenses.
(a) Neither the Manager nor the Special Purpose Manager shall receive any management or
other fee or salary for services rendered to the Company, or reimbursement of any costs and
expenses incurred in connection therewith, except as permitted pursuant to Section 1.9 (c) or as
provided in Section 5.5(b).
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(b) The Manager and the Special Purpose Manager shall each be entitled to current
reimbursement out of Company assets for all reasonable costs and expenses incurred by it when
acting for or on behalf of the Company and in accordance with the terms of this Agreement
specifically including, but not limited to, all salaries and related expenses of its employees
performing authorized services for the Company. The Manager shall be entitled to an annual fee in
the amount of $100,000, payable quarterly in advance, for accounting and administrative services.
ARTICLE VI
ROLE OF MEMBERS
6.1 Rights or Powers.
Except as provided in this Agreement, the Members, in their capacities as members of the
Company, hereby agree not to exercise any right or power to take part in the management of the
Company or its business and affairs or to act for or bind the Company in any way. Notwithstanding
the foregoing, the Members have all the rights and powers specifically set forth in this Agreement
and, to the extent not inconsistent with this Agreement, in the Act.
6.2 Meetings of the Members.
(a) Meetings of the Members may be called upon the written request of any Manager or Member.
The call shall state the location of the meeting and the nature of the business to be transacted.
Notice of any such meeting shall be given to all Members not less than one (1) Business Day nor
more than thirty (30) days prior to the date of such meeting. Members may vote in person, by proxy
or by telephone at such meeting and may waive advance notice of such meeting. Whenever the vote or
consent of Members is permitted or required under this Agreement, such vote or consent may be given
at a meeting of the Members or may be given in accordance with the procedure prescribed in this
Section 6.3.
(b) Each Member may authorize any Person or Persons to act for it by proxy on all matters in
which a Member is entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Member or its
attorney-in-fact. No
proxy shall be valid after the expiration of eleven (11) months from the date thereof unless
otherwise provided in the proxy. Every proxy prior to its exercise shall be revocable at the
pleasure of the Member executing it.
(c) Each meeting of the Members shall be conducted by the Member or Manager calling the
meeting.
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(d) Notwithstanding this Section 6.3, the Company may take any action contemplated
under this Agreement as approved by the consent of the Members, such consent to be provided in
writing, or by telephone or facsimile, if such telephone conversation or facsimile is followed by a
written summary of the telephone conversation or facsimile communication sent by registered or
certified mail, postage and charges prepaid, addressed as described in Section 13.1 hereof, or to
such other address as such Person may from time to time specify by notice to the Members and the
Manager.
6.3 Withdrawal/Resignation.
Except as otherwise provided in Article IV and Article XII, no Member shall demand or receive
a return on or of its Capital Contributions or withdraw from the Company without the consent of
both the Manager and the Special Purpose Manager. Except as otherwise provided in the Act or this
Agreement, upon resignation, any resigning Member is entitled to receive only the distribution to
which he is entitled under this Agreement, which shall be equal to the fair value of its Interest
in the Company as of the date of resignation.
6.4 Member Compensation.
No Member shall receive any interest, salary or draw with respect to its Capital Contributions
or its Capital Account or for services rendered on behalf of the Company, or otherwise, in its
capacity as a Member, except as otherwise provided in this Agreement.
6.5 Members Liability.
No Member shall be liable under a judgment, decree or order of a court, or in any other manner
for the debts or any other obligations or liabilities of the Company and each Member shall be
liable only to make its Capital Contributions and shall not be required to restore a deficit
balance in its Capital Account or to lend any funds to the Company or, after its Capital
Contributions have been made pursuant to Article II, to make any additional contributions,
assessments or payments to the Company; provided that a Member may be required to repay
distributions made to it as provided in Section 18-607 of the Act. None of the Members, the Manager
or the Special Purpose Manager shall have any personal liability for the repayment of any Capital
Contributions of any Member.
6.6 Partition.
While the Company remains in effect or is continued, each Member agrees and waives its rights
to have any Properties partitioned, or to file a complaint or to institute any suit, action or
proceeding at law or in equity to have any Properties partitioned, and
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each Member, on behalf of itself, its successors and its assigns hereby waives any such right.
6.7 Transactions Between a Member and the Company.
Except as otherwise provided by applicable law and subject to Section 5.2, any Member may, but
shall not be obligated to, transact business with the Company and has the same rights and
obligations when transacting business with the Company as a person or entity who is not a Member. A
Member, any Affiliate thereof or an employee, stockholder, agent, director or officer of a Member
or any Affiliate thereof, may also be an employee or be retained as an agent of the Company. The
existence of these relationships and acting in such capacities will not result in such Member being
deemed to be participating in the control of the business of the Company or otherwise affect the
limited liability of such Member.
6.8 Other Instruments.
Each Member hereby agrees to execute and deliver to the Company promptly after receipt of a
written request therefor, such other and further documents and instruments, statements of interest
and holdings, designations, powers of attorney and other instruments and to take such other action
as the Manager reasonably deems necessary, useful or appropriate to comply with any laws, rules or
regulations as may be
necessary to enable the Company to fulfill its responsibilities under this Agreement.
6.9 Other Covenants.
Each Member hereby agrees:
(a) To maintain books and records separate from the Company;
(b) Not to commingle assets with those of the Company;
(c) Not to conduct its own business in the name of the Company;
(d) To maintain separate financial statements from those of the Company;
(e) Not to pay its own liabilities out of the funds of the Company;
(f) To observe all corporate, partnership or limited liability company (as applicable)
formalities;
(g) Not to pay the salaries of its own employees with funds of the Company;
(h) Not to guarantee or become obligated for the debts of the Company or hold out its
credit as being available to satisfy the obligations of the Company;
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(i) To maintain office space separate from the Company;
(j) To use stationery, invoices, and checks separate from those of the
Company;
(k) Not to pledge its assets for the benefit of the Company;
(1) To hold itself out as a separate entity from the Company;
(m) Except as otherwise permitted by this Agreement, not to (i) take any action to file a
certificate of dissolution or its equivalent with respect to itself, (ii) exercise any power under
the Act to dissolve the Company, and (iii) petition for judicial dissolution of the Company; and
(n) To file all of its income tax returns in a manner consistent with its status as a
partner of the Company for income tax purposes, unless otherwise specifically required by
applicable law, including relevant judicial or administrative interpretations thereof.
Notwithstanding the foregoing, the execution, delivery and performance of the Lease is not a
violation of this Agreement.
ARTICLE
VII
INDEMNIFICATIONS
7.1 Indemnification of the Company, the Managers and the Members.
(a) Unless otherwise provided in Section 7.1(c), the Company, its receiver or its trustee (in
the case of its receiver or trustee, to the extent of Properties) shall indemnify, save harmless,
and pay all Damages of the Manager, the Special Purpose Manager and any Member or any stockholders,
directors, members, officers, employees or agents of any of them relating to any Damages incurred
by reason of any act performed or omitted to be performed by such Manager or such Member or any
stockholders, directors, members, officers, employees or agents of any of them in connection with
the business of the Company, including reasonable attorneys fees incurred by such Manager or such
Member or any stockholder, director, member, officer, employee or agent of any of them in
connection with the defense of any action based on any such act or omission, which attorneys fees
may be paid as incurred.
(b) Unless otherwise provided in Section 7.1(c), in the event of any action by a Member
against any Manager or any stockholder, director, member, officer, employee or agent of any
Manager, including a Company derivative suit, the Company, its receiver or its trustee (in the
case of its receiver or trustee, to the extent of Properties) shall
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indemnify, save harmless, and pay all Damages of such Person, including reasonable attorneys
fees incurred in the defense of such action; provided that such Person shall provide an undertaking
to repay the indemnification payment made by the Company to such Person pursuant to this Section
7.1(b) if such Person is found by a final nonappealable judgment not to be entitled to
indemnification.
(c) Notwithstanding
the provisions of Sections 7.1(a) and 7.1(b), (i) such Sections
shall be enforced only to the maximum extent permitted by law and (ii) no Member or Manager
shall be indemnified from any liability for its fraud, willful misconduct or gross
negligence.
(d) The obligations of the Company set forth in this Section 7.1 are expressly intended to
create third party beneficiary rights in favor of any Manager and any stockholder, director,
member, officer, employee or agent of any Manager or any Member and any Member is authorized, on
behalf of the Company, to give written confirmation to any such Person of the existence and extent
of the Companys obligations to such Person hereunder.
7.2 Indemnification Procedures.
(a) In the event any claim is made by a third party against any Manager, any Member, the
Liquidator, or any stockholder, officer, member, director, agent, employee, successor or assign of
any of them, with respect to an actual or potential liability for which any such Person is
otherwise entitled to be indemnified under any provisions of Section 7.1(a), 7.1(b) and 12.9(c),
and any such Person wishes to be indemnified with respect thereto, such Person shall observe the
procedures set forth below in Section 7.2.
(b) A party entitled to indemnification pursuant to Article VII (an Indemnitee) shall give
the party obligated to provide indemnification (the Indemnitor)notice in writing of any claim or
other matter as to which indemnification will be sought (an Indemnified Matter) as promptly as is
reasonably practicable after the Indemnitee becomes aware of the Indemnified Matter and shall
thereafter keep the Indemnitor reasonably informed with respect thereto; provided that failure of
the Indemnitee to give the Indemnitor prompt notice as provided herein shall not relieve the
Indemnitor of any of its obligations hereunder, except to the extent that the Indemnitor is
materially prejudiced by such failure. The Indemnitor
shall be entitled to assume the defense or handling of such Indemnified Matter by giving
written notice of its intention to do so to the Indemnitee within 30 days after receipt of the
notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitors own expense, and
the Indemnitee shall cooperate with the Indemnitor, at the Indemnitors expense, in any such
action. If the Indemnitor shall assume the defense of such Indemnified Matter, it shall not settle
such Indemnified Matter unless such settlement includes as an unconditional term thereof the giving
by the claimant or the plaintiff of a full, general release of the Indemnitee,
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reasonably satisfactory to the Indemnitee, from all liability with respect to such Indemnified
Matter. As long as the Indemnitor is contesting any such Indemnified Matter in good faith and on a
timely basis, the Indemnitee shall not pay or settle any claims relating to the Indemnified Matter.
Notwithstanding the assumption by the Indemnitor of the defense or handling of any Indemnified
Matter as provided in this
Section 7.2 (b), the Indemnitor shall thereafter consult with the
Indemnitee upon its reasonable request from time to time with respect to such Indemnified Matter.
The Indemnitee shall be permitted to join in the defense or handling of such Indemnified Matter and
to employ counsel at its own expense; provided, however, that if the defendants or potential
defendants or obligors in connection with any Indemnified Matter shall include both an Indemnitor
and an Indemnitee, and such Indemnitee shall have reasonably concluded that counsel selected by the
Indemnitor has a conflict of interest because of the availability of different or additional
defenses to such Indemnitee, such Indemnitee shall have the right to select separate counsel to
participate in the defense or handling of such Indemnified Matter on its behalf, the reasonable
fees and expenses of which shall be borne by the Indemnitor.
(c) If the Indemnitor shall fail to notify the Indemnitee of its desire to assume the defense
or handling of any such Indemnified Matter within the prescribed period of time, or shall notify
the Indemnitee that it will not assume the defense or handling of any such Indemnified Matter, then
the Indemnitee may assume the defense or handling of any such Indemnified Matter, in which event it
may do so in such manner as it may deem appropriate, and the Indemnitor shall be bound by any
determinations made in connection with such Indemnified Matter or any settlement thereof effected
by the Indemnitee, unless the Indemnitor shall, within 20 days after notice of the proposed terms
of such determination or settlement, object to such determination or settlement, as the case may
be, and agree to pay all reasonable costs and expenses of the Indemnitee in connection with the
Indemnitees defense of such Indemnified Matter, in which case the Indemnitor shall not be bound by
any such determination or settlement effected without its consent, so long as the Indemnitor
promptly pays such costs and expenses as incurred by the Indemnitee. The failure or election of the
Indemnitor to assume the defense or handling of any such Indemnified Matter shall not be deemed a
concession that it is required to indemnify the Indemnitee for the subject matter of such
Indemnified Matter. The Indemnitor shall be permitted to join in the defense or handling of such
Indemnified Matter and to employ counsel at its own expense.
(d) Amounts payable by the Indemnitor to the Indemnitee in respect of any Indemnified Matter
for which such party is entitled to indemnification hereunder shall accrue interest at the prime
rate (as set forth from time to time in the Wall Street Journal) plus 3% per annum from and
including the date such Losses are incurred to but not including the date of payment or
satisfaction of such Losses (with appropriate proration for periods of less than one year).
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ARTICLE VIII
ACCOUNTING, BOOKS AND RECORDS
8.1 Accounting, Books and Records.
(a) The Company shall keep at its principal place of business each of the
following:
(i) Separate books of account for the Company which shall show a true and
accurate record of all costs and expenses incurred, all charges made, all credits made and
received, and all income derived in connection with the conduct of the Company and the
operation of its business in accordance with this Agreement;
(ii) A current list of the full name and last known business, or mailing address
of each Member and each Manager, both past and present;
(iii) A copy of the Certificate and all amendments thereto, together with executed
copies of any powers of attorney pursuant to which any amendment has been executed;
(iv) Copies of the Companys federal, state, and local income tax returns and
reports, if any, for each year since the Effective Date;
(v) Copies of this Agreement;
(vi) Copies of any writings permitted or required under Section 18-502 of the Act
regarding the obligation of a Member to perform any enforceable promise to contribute cash
as consideration for such Members Interest; and
(vii) Any written consents obtained from Members pursuant to Section 18-302 of the
Act regarding action taken by Members without a meeting.
(b) The Company shall use the accrual method of accounting in preparation of its financial
reports and for tax purposes and shall keep its books and records accordingly.
(c) All amounts payable under any agreement other than this Agreement between the Company on
the one hand and the Members or their Affiliates on the other hand shall be treated as occurring
between the Company and a Person who is not a partner within the meaning of Section 707(a)(1) of
the Code and such amounts payable by the Company to any Member or its Affiliates shall be
considered an expense or capital cost, as the case may be, of the Company for income tax and
financial reporting purposes, and shall not be considered a distribution to such Member including,
without limitation, in maintaining such Members Capital Account, and any such amounts payable by
any
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Member or its Affiliates to the Company shall not be considered a contribution to the Company,
including, without limitation, in maintaining such Members Capital Account.
(d) Any Member or its designated representative has the right to have reasonable access to and
inspect and copy the contents of the books or records of the Company and shall also have reasonable
access
during normal business hours to such additional financial information, documents, books and
records as are in the possession of the Company. The rights granted to a Member pursuant to this
Section 8.1(d) are expressly subject to compliance by such Member with the safety, security and
confidentiality procedures and guidelines of the Company, as such procedures and guidelines may be
established from time to time.
(e) The Companys accountants shall be Arthur Andersen, 501 North 44th Street,
Suite 300, Phoenix, Arizona 85008 unless the Manager and the Special Purpose Manager agree to use
other accountants, which other accountants must be nationally recognized independent certified
public accountants.
8.2 Reports.
(a) In General. The Manager shall be responsible for causing the preparation of financial
reports of the Company and the coordination of financial matters of the Company with the Companys
accountants.
(b) Periodic and Other Reports. The Manager and the Special Purpose Manager, as the case may
be, shall cause to be delivered to each Member the financial statements, reports and certificates
stated below, prepared, where applicable (other than with respect to Members Capital Accounts,
which shall be prepared in accordance with this Agreement), in accordance with GAAP consistently
applied, and such other reports as any Member may reasonably request from time to time; provided
that, such other reports shall be provided at such requesting Members sole cost and expense unless
(x) the information provided therein is needed by the requesting Member in order to comply with any
law or regulations of any governmental or regulatory agency, (y) the Manager elects within thirty
(30) days of such request to pay the cost of providing such reports, or (z) the requested report
was furnished to the Company by the Lessee or was otherwise prepared by the Manager in its capacity
as the Manager.
(i) As soon as practicable following the end of each Fiscal Year (and in any
event not later than one hundred twenty (120) days after the end of such Fiscal Year), a
statement of the Members Capital Accounts and changes therein during such Fiscal Year;
(ii) As soon as practicable and in any event within 120 days after the end of
each fiscal year of the Company, a balance sheet or equivalent statement of
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financial position of the Borrower as at the end of such fiscal year and the related
statement of income, changes in Members Capital Accounts and statement of cash flows for
such fiscal year, all presented in accordance with GAAP. If a Member so requests, such
financial statements shall be audited by a firm of independent certified public accountants
selected by the Members. All costs of preparation and distribution of such reports and the
costs of the audit shall be borne by the Company;
(iii) As soon as practicable and in any event within 20 days after the end of each
month, a report on investments in Garbage Trucks and Other Assets as of the end of such
month;
(iv) As soon as available and in any event within 45 days after the end of each
quarter, an unaudited balance sheet of the Company as of the end of such quarter and the
related statement of income and changes in Members Capital Accounts and statement of cash
flow for such quarter;
(v) Within five days after the Manager obtains knowledge of the occurrence of any
event that (x) is out of the ordinary course of business for the Company or (y) has or is
reasonably likely to have a Material Adverse Effect on the Company, the Manager shall
inform all the Members of such event by providing a report setting forth the detail of such
event, and any actions, if applicable, that are being taken or have been proposed to be
taken with respect thereto.
(vi) At such time as distributions are made to the Members pursuant to Article XII
following the occurrence of a Dissolution Event, (A) a balance sheet of the Company as of
such time setting forth the Gross Asset Values of the Properties as adjusted pursuant to
clause (ii) of the definition Gross Asset
Value in Section 1.10 and (B) a statement of
the Members Capital Accounts and changes therein for the Fiscal Year then ended, including
a statement of the amount of gain or loss, if any, realized on the sale or disposition or
deemed to be realized on the adjustment to the Gross Asset Value of each Garbage Truck,
Other Assets and Modifications thereof, if any, as of such time, together with appropriate
notes to such financial statements and supporting schedules, all of which shall be audited
and certified by the Companys accountants not later than seventy-five (75) days after the
date on which such liquidating distributions are made.
8.3 Tax Matters.
(a) Tax Elections. The Tax Matters Member shall be permitted to, without any further consent
of the Members being required (except as specifically required herein) but after first obtaining
the prior written consent of the Special Purpose Manager, make any
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and all elections at its sole discretion for federal, state and local tax purposes; provided,
however, the Special Purpose Manager shall receive the written consent of the Ref-Fuel Company with
respect to the method of tax depreciation to be used by the Company. The Members may agree as to
the allocation of such Members right with respect to the allocation of duties, responsibilities
and control over tax matters. Notwithstanding the foregoing, the Tax Matters Member shall not make
the election under Treasury Regulations Section 301.7701-3(c) (or any successor provision thereto)
for the Company to be classified other than as a partnership for federal income tax purposes. The
Manager is specifically authorized to act as the TaxMatters Member under the Code and in any
similar capacity under state or local law.
(b) Tax Returns. The Tax Matters Member shall be responsible for managing the preparation and
filing of all federal, state and local tax returns and information reports of the Company and shall
sign such returns and reports on behalf of the Company. The Tax Matters Member shall cause all such
federal, state and local tax returns to be prepared in a manner consistent with the Company having
the status of a partnership for income tax purposes, and such returns shall be prepared
consistently with the terms of this Agreement, in each case unless otherwise specifically required
by applicable law, including relevant judicial or administrative interpretations thereof. In
connection therewith, the Special Purpose Manager and the Members shall furnish the Tax Matters
Member with all information reasonably necessary for the preparation of such returns and reports
and shall prepare (or cause to be prepared) such returns and reports in a timely manner as directed
by the Tax Matters Member, with all tax elections and determinations relating to such returns and
reports to be made as provided in Section 8.3 above. The Special Purpose Manager shall have the
opportunity to review each tax return before such return is filed.
(c) Tax Information. Necessary tax information, including, without limitation, all Company tax
returns and related schedules, shall be delivered to each Member as soon as practicable after the
end of each Fiscal Year of the Company but not later than five (5) months after the end of each
Fiscal Year.
ARTICLE IX
AMENDMENTS
9.1 Amendments.
Amendments to this Agreement may be proposed by the Manager or any Member. Following such
proposal, the Manager shall submit to the Members a verbatim statement of any proposed amendment,
providing that counsel for the Company shall have approved of the same in writing as to form, and
the Manager shall include in any such submission a
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recommendation as to the proposed amendment. The Manager shall seek the written vote of the Members
and Managers on the proposed amendment or shall call a meeting to vote thereon and to transact any
other business that it may deem appropriate. A proposed amendment shall be adopted and be effective
as an amendment hereto if it receives the affirmative vote of all of the Members (and, in the case
of any amendment that increases a Managers duties and/or obligations under this Agreement, such
Manager).
ARTICLE X
TRANSFERS
10.1 Restrictions on Transfers.
Except as otherwise permitted by this Agreement, no Member shall Transfer all or any portion
of its Interest.
10.2 Permitted Transfers.
(a) AWP. Subject to the conditions and restrictions set forth in Section 10.3, AWP and any of
its successors or transferees may at any time Transfer all or any portion of its Interest to (a)
any of its Affiliate, or (b) any Person approved by all of the Members.
(b) Ref-Fuel Company. Subject to the conditions and restrictions set forth in Section 10.3,
Ref-Fuel Company and any of its successors or transferees may at any time Transfer all or any
portion of its Interest to (a) AWP or any affiliate of AWP or (b) any Person approved by all of the
Members.
(c) Notwithstanding of Sections 10.2(a) and 10.2(b) above, no Transfer shall be made by any
Member if such Transfer will prevent or otherwise impede the exercise of the Call Option or Put
Option, as the case may be. Notwithstanding anything to the contrary, exercise of the Call Option
or Put Option shall be permitted.
Any Transfer permitted by this Section 10.2 shall be referred to in this Agreement as a
Permitted Transfer, and the Person to which the Interest is transferred shall be a Permitted Transferee.
10.3 Conditions to Permitted Transfers.
Except for Transfers pursuant to the Call Option or the Put Option, a Transfer shall not be
treated as a Permitted Transfer under Section 10.2 hereof unless and until the following conditions
are satisfied:
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(a) The transferor and transferee shall execute and deliver to the Company such documents and
instruments of conveyance as may reasonably be necessary or appropriate in the opinion of counsel
to the Company to effect such Transfer and to confirm the agreement of the transferee to be bound
by the provisions of this Article X. In addition, the Company shall be reimbursed by the transferor
and/or transferee for all costs and expenses that it reasonably incurs in connection with such
Transfer.
(b) The transferor and transferee shall furnish the Company with the transferees taxpayer
identification number, sufficient information to determine the transferees initial tax basis in
the Interest transferred, and any other information reasonably necessary to permit the Company to
file all required federal and state tax returns and other legally required information statements
or returns. Without limiting the generality of the foregoing, the Company shall not be required to
make any distribution otherwise provided for in this Agreement with respect to any transferred
Interest until it has received such information.
(c) Except in the case of a Transfer to an Affiliate of Ref-Fuel Company or AWP, the
successors or transferees of either of them and their transferees shall execute certificates
substantially similar to the certificates (the Form Transferor Certificate and the
Form Transferee Certificate) attached hereto as Exhibit A-l and Exhibit A-2, respectively.
(d) Immediately following such Transfer, at least one Person other than a state or any
political subdivision thereof, will be a Member of the Company owning a capital and profits
interest therein.
10.4 Prohibited Transfers.
Any purported Transfer of any Interests that is not a Permitted Transfer shall be null and
void and of no force or effect whatever; provided that, if the Company is required to recognize a
Transfer that is not a Permitted Transfer, the Interests Transferred shall be strictly limited to
the transferors rights to allocations and distributions as provided by this Agreement with respect
to the transferred Interests, which allocations and distributions may be applied (without limiting
any other legal or equitable rights of the Company) to satisfy any debts, obligations, or
liabilities for damages that the transferor or transferee of such Interest may have to the Company.
In the case of a Transfer or attempted Transfer of Interests that is not a Permitted Transfer,
the parties engaging or attempting to engage in such Transfer shall be liable to indemnify and hold
harmless the Company and the other Member from all Damages that any of such indemnified Member may
incur (including, without limitation, incremental tax liabilities, lawyers fees and expenses) as a
result of such Transfer or attempted Transfer and efforts to enforce the indemnity granted hereby.
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10.5 Rights of Unadmitted Assignees.
A Person who acquires a Interest but who is not admitted as a substituted Member pursuant to
Section 10.6 hereof shall be entitled only to allocations and distributions with respect to such
Interest in
accordance with this Agreement, and shall have no right to any information or accounting of
the affairs of the Company, shall not be entitled to inspect the books or records of the Company,
and shall not have any of the rights of a Member under the Act or this Agreement.
10.6 Admission of Substituted Members.
Subject to the other provisions of this Article X, a transferee of a Interest may be admitted
to the Company as a substituted Member only upon satisfaction of the conditions set forth in this
Section 10.6:
(a) The Interest with respect to which the transferee is being admitted was acquired by
means of a Permitted Transfer;
(b) The transferee (other than a transferee that was a Member prior to the Transfer) shall, by
written instrument in form and substance reasonably satisfactory to the Manager (and, in the case
of clause (ii) below, the transferor Member), (i) become a party to this Agreement and (ii) assume
the obligations of the transferor Member under this Agreement with respect to the Transferred
Interest;
(c) The transferee pays or reimburses the Company for all reasonable legal, filing, and
publication costs that the Company incurs in connection with the admission of the transferee as a
Member with respect to the Transferred Interest; and
(d) If required by the Manager, the transferee (other than a transferee that was a Member
prior to the Transfer) shall deliver to the Company evidence of the authority of such Person to
become a Member and to be bound by all of the terms and conditions of this Agreement, and the
transferee and transferor shall each execute and deliver such other instruments as the Manager
reasonably deems necessary or appropriate to effect, and as a condition to, such Transfer,
including amendments to the Certificate or any other instrument filed with the State of Delaware or
any other state or governmental authority.
10.7 Distributions and Allocations in Respect of Transferred Interests.
If any Interests are Transferred during any Allocation Year in compliance with the provisions
of this Article X, Profits, Losses, each item thereof, and all other items attributable to the
Transferred Interests for such Allocation Year shall be divided and allocated between the
transferor and the transferee by taking into account their varying Percentage Interests during the
Allocation Year in accordance with Code Section 706(d), using any conventions permitted by law and
selected by the Tax Matters Member. Except
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as provided in Section 4.2, all distributions on or before the date of such Transfer shall be made
to the transferor, and all distributions thereafter shall be made to the transferee. Solely for
purposes of making such allocations, the Company shall recognize such Transfer not later than the
end of the calendar month during which it is given notice of such Transfer; provided that, if the
Company is given notice of a Transfer at least ten (10) Business Days prior to the Transfer, the
Company shall recognize such Transfer as of the date of such Transfer, and provided further that if
the Company does not receive a notice stating the date such Interest has been Transferred and such
other information as the Tax Matters Member may reasonably require within thirty (30) days after
the end of the Allocation Year during which the Transfer has occurred, then all such items shall be
allocated, and all distributions shall be made, to the Person who, according to the books and
records of the Company, is the owner of the Interest on the last day of such Allocation Year.
Neither the
Company nor any Manager or Member shall incur any liability for making allocations and
distributions in accordance with the provisions of this Section 10.7, whether or not the Manager,
the Tax Matters Member or the Company has knowledge of any Transfer of ownership of any Interest.
ARTICLE XI
[Intentionally
deleted]
ARTICLE XII
DISSOLUTION AND WINDING UP
12.1 Dissolution Events.
(a) Dissolution. The Company shall dissolve and shall commence winding up and liquidating
upon the first to occur of any of the following (each a Dissolution Event):
(i) The Bankruptcy of the Company;
(ii) The sale of all or substantially all of the Properties;
(iii) The unanimous vote of the Members to dissolve, wind up, and liquidate
the Company; or
(iv) The happening of any other event that makes it unlawful, impossible, or
impractical to carry on the business of the Company or the Delaware Court of Chancery has
entered a decree pursuant to Section 18-802 of the Act, and such decree has become final.
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The Members hereby agree that, notwithstanding any provision of the Act, the dissolution,
retirement, resignation, expulsion or Bankruptcy of any Member as a Member or the transferees of
either of them, shall not constitute a Dissolution Event or otherwise result in the dissolution of
the Company and the Company shall not dissolve prior to the occurrence of a Dissolution Event.
(b) Reconstitution. If it is determined, by a court of competent jurisdiction, that the
Company has dissolved prior to the occurrence of a Dissolution Event, then within ninety (90) days
after such determination (the Reconstitution Period), the Members may elect to
reconstitute the Company and continue its business on the same terms and conditions set forth in
this Agreement by forming a new limited liability company on terms identical to those set forth in
this Agreement. Unless such an election is made within the Reconstitution Period, the Company shall
liquidate and wind up its affairs in accordance with Section 12.2. If such an election is made
within the Reconstitution Period, then:
(i) The reconstituted limited liability company shall continue until the
occurrence of a Dissolution Event as provided in Section 12.1(a); and
(ii) Unless otherwise agreed to by all of the Members, the Certificate and this
Agreement shall automatically constitute the Certificate and Agreement of such new Company.
All
of the assets and liabilities of the dissolved Company shall be deemed to have been
automatically assigned, assumed, conveyed and transferred to the new Company. No bond,
collateral, assumption or release of any Members or the Companys liabilities shall be
required;
provided that the right of the Members to select successor Managers and to reconstitute and
continue the business of the Company shall not exist and may not be exercised unless the Company
has received an opinion of counsel selected by AWP reasonably satisfactory to the Special Purpose
Manager that the exercise of the right would not result in the loss of limited liability of any
Member and neither the Company nor the reconstituted limited liability company would cease to be
treated as a partnership for federal income tax purposes upon the exercise of such right to
continue and that none of the Members or their Affiliates would recognize gain or taxable income
upon such reconstitution.
Upon the occurrence of (i) a Dissolution Event or (ii) the determination by a court of
competent jurisdiction that the Company has dissolved prior to the occurrence of a Dissolution
Event (unless the Company is reconstituted pursuant to Section 12.1 (b) hereof), the Company shall
continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its
assets, and satisfying the claims of its creditors and Members, and no Manager or Member shall take
any action that is inconsistent with, or
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not necessary to or appropriate for, the winding up of the Companys business and affairs; provided
that all covenants contained in this Agreement and obligations provided for in this Agreement shall
continue to be fully binding upon the Managers and Members until such time as the Properties have
been distributed pursuant to this Section 12.2 and the Certificate has been canceled pursuant to
the Act. The Liquidator shall be responsible for overseeing the winding up and dissolution of the
Company, which winding up and dissolution shall be completed within ninety (90) days of the
occurrence of the Dissolution Event or within ninety (90) days after the last day on which the
Company may be reconstituted pursuant to Section 12.1(b) hereof, as the case may be. The Liquidator
shall take full account of the Companys liabilities and Properties and shall cause the Properties
or the proceeds from the sale thereof (as determined pursuant to Section 12.10), to the extent
sufficient therefor, to be applied and distributed, to the maximum extent permitted by law, in the
following order:
(a) First, to creditors (including Members and Managers who are creditors, including pursuant
to Section 5.4, to the extent otherwise permitted by law) in satisfaction of all of the Companys
Debts and other liabilities including any claims and obligations as required by Section 18-804(b)
of the Act (whether by payment or the making of reasonable provision for payment thereof), other
than liabilities for which reasonable provision for payment has been made and liabilities for
distribution to Members and former Members under Section 18-601 or
18-604 of the Act;
(b) Second, to Members and former Members of the Company in satisfaction of liabilities for
distribution under Sections 18-601 or 18-604 of the Act; and
(c) The balance, if any, to the Members in accordance with the positive balances in their
Capital Accounts, after giving effect to all contributions, distributions and allocations for all
periods.
No Member or Manager shall receive additional compensation for any services performed pursuant to
this
Article XII.
12.3 Alternative Methods of Distributions.
(a) In the discretion of the Liquidator, a pro rata portion of the distributions that may
otherwise be made to the Members pursuant to this Article XII may be:
(i) Distributed to a trust established for the benefit of the Members for the
purposes of liquidating Company assets, collecting amounts owed to the Company, and paying
any contingent or unforeseen liabilities or obligations of the Company. The assets of any
such trust shall be distributed to the Members from time to time, in the reasonable
discretion of the Liquidator subject to Section 12.2(a), in the same proportions as the
amount distributed to such trust by the
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Company would otherwise have been distributed to the Members pursuant to Section
12.2; or
(ii) Withheld to provide a reasonable reserve for Company liabilities (contingent
or otherwise); provided that such withheld amounts shall be distributed to the Members as
soon as practicable.
The portion of the distributions that would otherwise have been made to each Member that is instead
withheld to provide a reserve pursuant to Section 12.3(a) shall be determined in the same manner as
the expense or deduction would have been allocated if the Company had realized an expense equal to
such amounts immediately prior to distributions being made pursuant to Section 12.2.
12.4 Rights of Members.
Except as otherwise provided in this Agreement, each Member shall look solely to the
Properties of the Company for the return of its Capital Contribution. If the assets of the Company
remaining after payment or discharge of the debts or liabilities of the Company are insufficient to
return such Capital Contribution, the Members shall have no recourse against the Company or any
other Member or Manager.
12.5 Notice of Dissolution/Termination.
(a) In the event a Dissolution Event occurs [or an event occurs that would, but for provisions
of Section 12.1, result in a dissolution of the Company], the Manager shall, within thirty (30)
days thereafter, provide written notice thereof to each Member and to all other parties with whom
the Company regularly conducts business (as determined in the discretion of the Manager) and shall
publish notice thereof in a newspaper of general circulation in each place in which the Company
regularly conducts business (as determined in the discretion of the Manager).
(b) Upon completion of the distribution of the Companys Properties as provided in this
Article XII, the Company shall be terminated, and the Liquidator shall cause the filing of the
Certificate of Cancellation pursuant to Section 18-203 of the Act and shall take all such other
actions as may be necessary to terminate the Company.
12.6 Allocations During Period of Liquidation.
During the period commencing on the first day of the Allocation Year during which a
Dissolution Event occurs and ending on the date on which all of the assets of the Company have been
distributed to the Members pursuant to Section 12.2 (the Liquidation Period), the Members shall
continue to share Profits, Losses, gain, loss and other items of Company income, gain, loss or
deduction in the manner provided in
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Article III hereof but no distributions shall be made to the Members during such
Liquidation Period other than in accordance with Section 12.2.
12.7 Character of Liquidating Distributions.
All payments made in liquidation of the interest of a Member in the Company shall be made in
exchange for the interest of such Member in Properties pursuant to Section 736(b)(1) of the Code,
including the interest of such Member in the goodwill of the Company.
12.8 The Liquidator.
(a) Definition. The Liquidator shall mean the Manager or if the Manager is unable or
unwilling to assume the responsibilities of the Liquidator, then the Liquidator shall be a Person
elected by the Members holding a majority of the Interest based on the balance of each Members
Capital Account as of the close of business the day before the day of determination.
(b) Fees. If the Liquidator is other than the Manager, the Company is authorized to pay a
reasonable fee to the Liquidator for its services performed pursuant to this Article XII and to
reimburse the Liquidator for its reasonable costs and expenses incurred in performing those
services.
(c) Indemnification. Subject to Section 7.2, the Company shall indemnify, save harmless, and
pay all judgments and claims against such Liquidator (other than the Manager which shall be
indemnified under Section 7.1) or any officers, directors, agents or employees of such Liquidator
relating to any Damages incurred by reason of any act performed or omitted to be performed by such
Liquidator, or any officers, directors, agents or employees of such Liquidator in connection with
the liquidation of the Company, including reasonable attorneys fees incurred by such Liquidator,
officer, director, agent or employee in connection with the defense of any action based on any such
act or omission, which attorneys fees may be paid as incurred, except to the extent such liability
or damage is caused by the fraud, intentional misconduct of, or a knowing violation of the laws by,
such Liquidator which was material to the cause of action.
12.9 Form of Liquidating Distributions.
For purposes of making distributions required by Section 12.2 hereof, the Liquidator may
determine whether to distribute all or any portion of the Properties in-kind or to sell all or any
portion of the Properties and distribute the proceeds therefrom.
- 43 -
ARTICLE XIII
CERTAIN REPRESENTATIONS AND COVENANTS
Each Member and its Permitted Transferee represents and covenants to the Company and the
other Members as follows:
13.1 The Member (A) is an Accredited Investor, (B) is aware that the sale of the Interest to it
is being made in reliance on the exemption from registration provided by Section 4(2) of the
Securities Act and (C) is acquiring the Interest for its own account by exercising its sole
investment discretion. The Member has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment in the Interest, and
the Member is able to bear the economic risk of its investment indefinitely.
13.2 The Member understands that the Interest is being offered only in a transaction not
involving any public offering in the United States within the meaning of the Securities Act, the
Interest has not been and will not be registered under the Securities Act, and, if in the future
the Member decides to offer, resell, pledge or otherwise transfer the Interest, such Interest may
be offered, resold, pledged or otherwise transferred only in accordance with the legend set forth
on the cover of this Agreement. The Member acknowledges that no representation is made by the
Company, other Members, the Manager or the Special Purpose Manager, as to the availability of any
exemption under the Securities Act or any state securities laws for resale of the Interest.
13.3 The Member understands that an investment in the Interest involves certain risks, including
the risk of loss of a substantial part of its investment under certain circumstances. The Member
has had access to such financial and other information concerning the Company, other Members, the
Manager or the Special Purpose Manager, and the Interest as it deemed necessary or appropriate in
order to make an informed investment decision with respect to its purchase of the Interest,
including an opportunity to ask questions of and request information from the Company.
13.4 In connection with the purchase of the Interest: (i) none of the Company, other Members, the
Manager or the Special Purpose Manager is acting as a fiduciary or financial or investment adviser
for the Member; (ii) the Member is not relying (for purposes of making any investment decision or
otherwise) upon any advice, counsel or representations (whether written or oral) of the Company,
other Members, the Manager or the Special Purpose Manager other than those set forth in this
Agreement; (iii) none of the Company, other Members, the Manager or the Special Purpose Manager has
given to the Member (directly or indirectly through any other person) any assurance, guarantee, or
representation whatsoever as to the expected or projected success, profitability, return,
- 44 -
performance, result, effect, consequence, or benefit (including legal, regulatory, tax,
financial, accounting, or otherwise) of its purchase or the documentation for the Interest; (iv)
the Member has consulted with its own legal, regulatory, tax, business, investment, financial, and
accounting advisers to the extent it has deemed necessary, and it has made its own investment
decisions (including decisions regarding the suitability of any transaction pursuant to the
documentation for the Interest) based upon its own judgment and upon any advice from such advisers
as it has deemed necessary and not upon any view expressed by the Company, other Members, the
Manager or the Special Purpose Manager; (v) the Member is purchasing the Interest with a full
understanding of all of the terms, conditions and risks thereof (economic and otherwise), and it is
capable of assuming and willing to assume (financially and otherwise) those risks; and (vi) the
Member is a sophisticated investor familiar with transactions similar to its investment in the
Interest.
13.5 The Member understands that the Interest may not at any time be held by or on behalf of a
Person that is not an Accredited Investor.
13.6 The Member will not, at any time, offer to buy or offer to sell the Interest by any form of
general solicitation or advertising, including, but not limited to, any advertisement, article,
notice or other communication published in any newspaper, magazine or similar medium or broadcast
over television or radio or seminar or meeting whose attendees have been invited by general
solicitations or advertising.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices.
Any notice, payment, demand, or communication required or permitted to be given by any
provision of this Agreement shall be in writing and shall be deemed to have been given for all
purposes when the same is actually received, and shall be addressed as follows, or to such other
address as such Person may from time to time specify by notice to the Members and the Managers:
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If to the Company, to the address determined pursuant to Section 1.4; |
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If to a Member, to the address set forth in Section 2.1; and |
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If to the Manager: |
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Allied Waste North America, Inc.
15880 North Greenway-Hayden Loop |
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Suite 100
Scottsdale, Arizona 85260
Attention: General Counsel |
- 45 -
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With copies to: |
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Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10006
Attention: Craig Miller |
14.2 Binding Effect.
Except as otherwise provided in this Agreement, every covenant, term, and provision of
this Agreement shall be binding upon and inure to the benefit of the Managers and Members and
their respective successors, transferees and assigns.
14.3 Construction.
Every covenant, term, and provision of this Agreement shall be construed simply according to
its fair meaning and not strictly for or against any Member or Manager.
14.4 Headings.
Section and other headings contained in this Agreement are for reference purposes only and
are not intended to describe, interpret, define, or limit the scope, extent, or intent of this
Agreement or any provision hereof.
14.5 Severability.
Except as otherwise provided in the succeeding sentence, every provision of this Agreement is
intended to be severable, and, if any term or provision of this Agreement is illegal or invalid for
any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of
the remainder of this Agreement. The preceding sentence of this Section 13.5 shall be of no force
or effect if the consequence of enforcing the remainder of this Agreement without such illegal or
invalid term or provision would be to cause any Member or Manager to lose the material benefit of
its economic bargain.
14.6 Incorporation by Reference.
Every exhibit, schedule, and other appendix attached to this Agreement and referred to
herein is not incorporated in this Agreement by reference unless this Agreement expressly
otherwise provides.
- 46 -
14.7 Governing Law.
The laws of the State of Delaware without regard to its conflict of law principles shall
govern the validity of this Agreement, the construction of its terms, and the interpretation of the
rights and duties arising hereunder.
14.8 Waiver of Jury Trial.
Each of the Members irrevocably waives to the extent permitted by law, all rights to trial by
jury and all rights to immunity by sovereignty or otherwise in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
14.9 Counterpart Execution.
This Agreement may be executed in any number of counterparts with the same effect as if all of
the Members and Managers had signed the same document. All counterparts shall be construed together
and shall constitute one agreement.
14.10 Specific Performance.
Each Member and Manager agrees with each Member and Manager that the Members and Managers
would be irreparably damaged if the provisions of this Agreement are not performed in accordance
with their specific terms and that monetary damages would not provide an adequate remedy in such
event. Accordingly, it is agreed that, in addition to any other remedy to which the nonbreaching
Members and Managers may be entitled, at law or in equity, the nonbreaching Members and Managers
shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and
specifically to enforce the terms and provisions hereof in any action instituted in any court of
the United States or any state
thereof having subject matter jurisdiction thereof.
14.11 Consent to Jurisdiction.
Each Member and Manager (i) irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York and any New York State Court located in
the Borough of Manhattan in New York City and of any appellate court from any thereof in any action
arising out of this Agreement, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the defense of an inconvenient
forum, and (iv) consents to the service of process by mail. A final judgment in any such action
shall be conclusive and maybe enforced in other jurisdictions.
- 47 -
14.12
Nature of Interest.
Each Member, the Manager and the Special Purpose Manager acknowledges and agrees that each
Interest is a security governed by Article 8 of the UCC.
IN WITNESS WHEREOF, the parties have executed and entered into this Limited Liability Company
Agreement of the Company as of the day first above set forth.
[signatures follow on separate pages]
- 48 -
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American Ref-Fuel Company of Hempstead, as
Member
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By: |
/s/ William R. Reynolds
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Name: |
William R. Reynolds |
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Title: |
Vice President-Treasurers |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF H LEASING COMPANY, LLC.
- 49 -
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Allied Waste North America,
Inc., as Member
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By: |
/s/
Steven M. Helm
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Name: |
Steven M. Helm |
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Title: |
Secretary |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF H LEASING COMPANY, LLC
AND IS EXECUTED BY THE PARTY NAMED ABOVE IN ITS CAPACITY AS A MEMBER.
- 50 -
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Allied Waste North America, Inc.,
as Manager
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By: |
/s/
Steven M. Helm
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Name: |
Steven M. Helm |
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Title: |
Secretary |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF H LEASING COMPANY, LLC.
- 51 -
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American Ref-Fuel Company of Hempstead, as
Special Purpose Manager
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By: |
/s/ William R. Reynolds
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Name: |
William R. Reynolds |
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Title: |
Vice President-Treasurer |
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THIS IS A SIGNATURE PAGE TO THE LIMITED LIABILITY COMPANY AGREEMENT OF H LEASING COMPANY,
LLC. |
- 52 -
FIRST AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
H LEASING COMPANY, LLC
THIS FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT OF H LEASING COMPANY, LLC (this
Amendment) is made and entered into effective as of May 1, 2002, by and between Allied Waste
North America, Inc., a Delaware corporation (Allied), and BFI Energy Systems of Hempstead, Inc.,
a Delaware corporation (BFI Hempstead).
RECITALS
WHEREAS, H Leasing Company, LLC (the Company) was formed as a Delaware limited liability
company upon the filing of its Certificate of Formation with the Secretary of State of the State
of Delaware on December 14, 2000. The business and affairs of the Company, and the rights,
privileges, duties, obligations and relationship of its Members are governed by that certain
Limited Liability Company Agreement of H Leasing Company, LLC dated effective as of April 30, 2001
(the Operating Agreement). Unless otherwise defined herein, capitalized terms used in this
Amendment shall have the meanings given those terms in the Operating Agreement;
WHEREAS, pursuant to a Permitted Transfer effective April 30, 2002, American Ref-Fuel Company
of Hempstead, a New York general partnership (Ref-Fuel Company), transferred to BFI Hempstead all
of its Interest in the Company, with BFI Hempstead thereby becoming a substituted Member with
respect to such Interest; and
WHEREAS, the parties desire to amend certain provisions of the Operating Agreement as
described herein.
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained and
other good and valuable consideration, received to the full satisfaction of each of them, the
parties agree as follows:
AGREEMENT
1. Substituted Member. Each and every instance where the name American Ref-Fuel
Company of Hempstead, a New York general partnership appears in the Operating Agreement is hereby
amended to read BFI Energy Systems of Hempstead, Inc., a Delaware corporation. Except as
contained in Section 2.1 of the Operating Agreement, each and every instance where the name
American Ref-Fuel Company of Hempstead appears in the Operating Agreement is hereby amended to
read BFI Energy Systems of Hempstead, Inc. Each and every instance where the defined term
Ref-Fuel Company appears in the Operating Agreement is hereby amended to read BFI Hempstead.
2. Amendment of Section 1.3(a). Section 1.3(a) of the Operating Agreement is hereby
amended in its entirety to read as follows:
(a) The purposes of the Company are limited solely (i) to
acquiring, owning,
leasing, managing, conserving, maintaining, protecting, servicing and selling,
transferring, pledging or hypothecating or otherwise disposing of investments in Garbage
Trucks and Other Assets which, when held by the Company shall be held by the Company solely
for lease to third parties, (ii) to lending Company funds, in excess of funds necessary to
pay liabilities, to the Companys Affiliates on terms no less favorable to the Company than
those that would have been entered into with unrelated third parties, (iii) to acquiring,
owning, holding, investing, reinvesting, selling, encumbering and otherwise dealing with
personal property of every kind and description, and (iv) to engaging in activities
incidental to the purposes set forth in clauses (i), (ii) and (iii).
3. Amendment of Section 1.10. Section 1.10 of the Operating Agreement is hereby
amended as follows:
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a. |
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The definition of Affiliate is hereby amended in its entirety
to read as
follows: |
Affiliate means, with respect to any Person, an affiliate within
the meaning of Rule 12b-2 of the Securities Exchange Act of 1934, as
amended.
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b. |
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The definition of Call Option is hereby deleted in its entirety. |
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c. |
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The definition of Liquidation Period is hereby amended in its
entirety to
read as follows: |
Liquidation Period has the meaning set forth in Section 12.6.
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The definition of Liquidator is hereby amended in its
entirety to read as
follows: |
Liquidator has the meaning set forth in Section 12.8(a).
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e. |
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The definition of Put Option is hereby deleted in its entirety. |
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f. |
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The definition of Redemption is hereby deleted in its entirety. |
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The definition of Responsible Administrative Officers is
hereby amended in
its entirety to read as follows: |
Responsible Administrative Officers has the meaning set forth in
Section 5.4(c).
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h. |
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The definition of Responsible Participating Officers is
hereby amended in its entirety to read as follows: |
Responsible Participating Officers has the meaning set forth in
Section 5.4(c).
2
4. Amendment of Section 2.1. A new footnote is hereby added to Section 2.1 of
the Operating Agreement immediately following the reference to American Ref-Fuel Company of
Hempstead, which footnote shall read as follows:
Pursuant to a Permitted Transfer effective as of April 30, 2002, American
Ref-Fuel Company of Hempstead, a New York general partnership, transferred its entire
Interest in the Company to BFI Energy Systems of Hempstead, Inc. Concurrently with such
Permitted Transfer, BFI Energy Systems of Hempstead, Inc. was admitted as a substituted
Member of the Company. The address of BFI Energy Systems of Hempstead, Inc. is 15880 North
Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260, Attention: General Counsel,
Facsimile No.: (480)627-2703.
5. Amendment
of Section 3.3(b). The reference to Section 3.3(a) in the last sentence
of Section 3.3(b) of the Operating Agreement is hereby amended to read Section 3.3(b).
6. Amendment of Section 3.3(c). The reference to Section 3.3(b) in the last sentence
of Section 3.3(c) of the Operating Agreement is hereby amended to read Section 3.3(c).
7. Amendment of Section 3.3(d). The two references to Section 3.3(c) in Section
3.3(d) of the Operating Agreement are each hereby amended to read Section 3.3(d).
8. Amendment of last subsection of Section 3.3. The caption for the last subsection
of Section 3.3 of the Operating Agreement is hereby amended to read
(e) Gross Income
Allocation The two references to Section 3.3(d) in the last subsection of Section 3.3 of the
Operating Agreement are each hereby amended to read Section 3.3(e).
9. Amendment of Section 3.4. The first sentence of Section 3.4 of the Operating
Agreement is hereby amended in its entirety to read as follows:
The allocations set forth in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d) and
3.3(e) (the Regulatory Allocations) are intended to comply with certain
requirements of the Regulations.
10. Amendment of Section 3.5(a). Section 3.5(a) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(a) For purposes of determining the Profits, Losses, or any other items allocable to
any period, Profits, Losses and any such other items shall be determined on a daily, monthly
or other basis, as determined by the Tax Matters Member using any permissible method under
Code Section 706 and the Regulations thereunder.
11. Amendment of Section 4.1. Section 4.1 of the Operating Agreement is hereby
amended in its entirety to read as follows:
4.1 Distributions. The Company shall make distributions to the Members, pro rata in
accordance with their Percentage Interests, in such amounts and at such times as the
Manager and the Special Purpose Manager shall unanimously agree.
3
12. Amendment of Section 5.4(a). Section 5.4(a) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(a) The Manager and Special Purpose Manager shall cause the Company to conduct its
business and operations separate and apart from that of any Member, the Manager, the
Special Purpose Manager or any of their Affiliates, including, without limitation, (i)
maintaining books and financial records of the Company separate from the books and
financial records of any Member, the Manager, the Special Purpose Manager or any of their
Affiliates, and observing all Company procedures and formalities, including, without
limitation, maintaining minutes of Company meetings and acting on behalf of the Company
only pursuant to authorization of the Members as required under this Agreement, (ii)
causing the Company to pay its liabilities only from available assets of the Company, and
(iii) causing the Company to conduct its dealings with third parties in its own name and as
a separate and independent entity.
13. Amendment of Section 5.4(e). Section 5.4(e) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(e) [Intentionally deleted].
14. Amendment of Section 6.2(d). The reference to Section 6.3 in Section 6.2(d) of
the Operating Agreement is hereby amended to read Section 6.2. The reference to Section
13.1 in Section 6.2(d) of the Operating Agreement is hereby amended to read Section 14.1.
15. Amendment of Section 6.9(b). Section 6.9(b) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(b) [Intentionally deleted].
16. Amendment of Section 6.9(j). Section 6.9(j) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(j) [Intentionally deleted].
17. Amendment of Section 8.2(b). Section 8.2(b) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(b) Reports. The Manager and the Special Purpose Manager, as the case may be, shall
cause to be delivered to each Member such reports as any Member may reasonably request from
time to time.
18. Amendment of Section 8.3(a). The first sentence of Section 8.3(a) of the
Operating Agreement is hereby amended to read as follows:
The Tax Matters Member shall be permitted to, without any further consent of the
Members being required (except as specifically required herein) but after first obtaining
the prior written consent of the Special Purpose Manager, make any and all elections at its
sole discretion for federal, state and local tax purposes.
4
19. Amendment of Section 10.2(b). Section 10.2(b) of the Operating Agreement
is hereby amended in its entirety to read as follows:
(b) BFI Hempstead. Subject to the conditions and restrictions set forth in Section
10.3, BFI Hempstead and any of its successors or transferees may at any time Transfer all
or any portion of its Interest to (a) any of its Affiliates, or (b) any Person approved by
all of the Members.
20. Amendment of Section 10.2(c). Section 10.2(c) of the Operating Agreement is
hereby amended in its entirety to read as follows:
(c) [Intentionally deleted].
21. Amendment of Section 10.3. The first paragraph of Section 10.3 of the Operating
Agreement is hereby amended to read as follows:
A Transfer shall not be treated as a Permitted Transfer under Section 10.2 hereof
unless and until the following conditions are satisfied:
22. Amendment of Section 14.1. Clause (c) of Section 14.1 of the Operating
Agreement is hereby amended to read as follows:
(c) If to the Manager:
Allied Waste North America, Inc.
15880
North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
Attention: General Counsel.
23. Amendment of Section 14.11. Clause (i) of Section 14.11 of the Operating
Agreement is hereby amended to read as follows:
(i) irrevocably submits to the exclusive jurisdiction of the United States District
Court for the District of Arizona and any Arizona State Court located in Maricopa County,
Arizona and of any appellate court from any thereof in any action arising out of this
Agreement,.
24. Effect of this Amendment. Except as expressly set forth in this Amendment, all
other terms and provisions of the Operating Agreement remain in full force and effect.
25. Execution in Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which together shall
constitute
but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of
the date first written above by their respective officers thereunto duly authorized.
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Allied Waste North America, Inc. |
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By:
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/s/ Donald W. Slager |
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Its:
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Vice President, Operations |
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BFI Energy Systems of Hempstead, Inc. |
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By:
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/s/ Donald W. Slager |
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Its:
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President |
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Approved as to form: |
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Jo Lynn White, Counsel |
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6
exv3w550
Exhibit 3.550
Business ID: 878125
Date Filed: 09/19/2005 12:00 PM
Eric Clark
Secretary of State
[ILLEGIBLE]
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F0100 - Page 1 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
Certificate of Formation |
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The undersigned,
pursuant to Senate Bill No. 2395, Chapter 402, Laws of 1994, hereby
executes the following document and sets forth: |
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1. Name of the Limited Liability Company |
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Hancock County Development Company, LLC |
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2. The future
effective date is: upon filing
(Complete if applicable) |
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3. Federal Tax ID |
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Applied for |
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4. Name and Street Address of the Registered Agent and Registered Office is |
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Name:
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CT Corporation System |
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Þ
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Physical Address:
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c/o CT Corporation System, 645 Lakeland East Drive, Suite 101 |
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Þ
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P.O. Box |
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City, State, ZIPS, ZIP4 Flowood
MS 39232 |
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5. If the Limited Liability Company is to have a specific date of dissolution, the
latest date upon which the Limited Liability Company is to dissolve |
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6. Is full or partial management of the Limited Liability Company vested in
a manager or managers? (Mark appropriate box) |
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o Yes þ No |
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7. Other matters the managers or members elect to include |
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F0100 - Page 2 of 2
[ILLEGIBLE]
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
Certificate of Formation |
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By: |
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Signature |
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(Please keep writing within blocks) |
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exv3w551
Exhibit 3.551
OPERATING AGREEMENT OF
HANCOCK COUNTY DEVELOPMENT COMPANY, LLC
This Operating Agreement is executed as of September 19, 2005, by Allied Waste North America,
Inc., a Delaware corporation (the
Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Hancock County Development Company, LLC. The
name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Mississippi law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Mississippi
shall be CT Corporation System, 645 Lakeland East Drive, Suite 101, Flowood, Mississippi, County of
Harrison. The registered office may be changed to any other place within the State of Mississippi
upon the consent of the Member. The Company may maintain a registered office in any state within
which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Mississippi are CT Corporation System, 645
Lakeland East Drive, Suite 101, Flowood, Mississippi. The Companys agent for service of legal
process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Mississippi, and shall continue in perpetuity until the Company is dissolved
as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Mississippi. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of
the proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 29-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 29-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Mississippi Secretary of State or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities,
including those to the Member as a creditor, to the extent permitted by law, and the establishment
of any necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Mississippi Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Mississippi Law. The laws of the State of Mississippi shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Mississippi Limited Liability Company Act, as set forth in Miss. Code Ann.
Tit. 79, § 29-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc. |
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100.00 |
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15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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exv3w552
Exhibit 3.552
(Profit Domestic Corporation)
ARTICLES OF INCORPORATION
OF
WHITES TRUCKING & SANITARY LANDFILL, INC.
(Name of Corporation)
These Articles of Incorporation are signed by the incorporator(s) for the purpose of
forming a profit corporation pursuant to the provisions of Act 284, Public Acts of 1972, as
follows:
ARTICLE I.
The name of the corporation is Whites Trucking & Sanitary Landfill, Inc.
ARTICLE II.
The purpose or purposes for which the corporation is organized is to engage in any activity
within the purposes for which corporations may be organized under the Business Corporation Act of
Michigan.
To provide a garbage and trash collection service for the City of Manistee and surrounding
Townships; to provide this service through pick-up and disposal of refuse at site or sites to be
owned by the corporation; to do any and all things permitted by profit corporations of this State
necessary and incidental to the above purposes.
ARTICLE III.
(Use the following if the shares are to consist of one class only.)
The total authorized capital stock is:
(1) Common
shares 50,000 Par Value $1.00 per share
(No. of Shares)
OR (2) Common shares without par value.
(No. of Shares)
ARTICLE IV.
ARTICLE V.
The address of the initial registered office is:
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2121 Hill Road
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Manistee
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49660 |
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(No. and Street)
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(Town or City)
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(Zip Code)
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The mailing address of the initial registered office is (need not be completed unless different from the above address):
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2121 Hill Road
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Manistee
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49660 |
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(No. and Street)
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The
name of the initial resident agent at the registered office is: Lauren T. White
ARTICLE VI.
The name(s) and address(es) of the incorporator(s) are as follows:
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Lauren T. White
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2121 Hill Road, Manistee, Michigan
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49660 |
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Annette M. White
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2121 Hill Road, Manistee, Michigan
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49660 |
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ARTICLE VII.
OPTIONAL
(Delete Article VII if not applicable.
When a compromise or arrangement or a plan of reorganization of this corporation is
proposed between this corporation and its creditors or any class of them or between this
corporation and its shareholders or any class of them, a court of equity
jurisdiction within the state, on application of this corporation or of a creditor or
shareholder thereof or on application of a receiver appointed for the corporation, may
order a meeting of the creditors or class of creditors or of the shareholders or class of
shareholders to be affected by the proposed compromise or arrangement or reorganization,
to be summoned in such manner as the court directs. If a majority in number representing
3/4 in value of the creditors or class of creditors, or of the shareholders or class of
shareholders to be affected by the proposed compromise or arrangement or a
reorganization, agree to a compromise or arrangement or a reorganization of this
corporation as a consequence of the compromise or arrangement, the compromise or
arrangement and the reorganization, if sanctioned by the court to which the application
has been made, shall be binding on all the creditors or class of creditors, or on all
the shareholders or class of shareholders and also on this corporation.
ARTICLE VIII.
(Here insert any desired additional provisions authorized by the Act)
IN WITNESS WHEREOF, the undersigned the incorporator(s) of the above-named corporation, has
(have) hereunto signed these Articles of Incorporation on this 30th day of
May, 1973.
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Lauren T. White |
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Annette M. White |
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(See Instructions on Reverse Side) |
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
Date received
JAN 25 1980
(See Instructions on Reverse Side)
(For Use by Domestic Corporations)
CERTIFICATE OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
The undersigned corporation executes the following Certificate of Amendment to its
Articles of Incorporation pursuant to the provisions of Section 631, Act 284, Public Acts
of 1972, as amended:
1. The name of the corporation is WHITES TRUCKING & SANITARY LANDFILL, INC.
2. The location of the registered office is
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2121 Hill Road
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Manistee
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49660 |
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(No. and Street)
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3. The following amendment to the Articles of Incorporation was adopted on the
1st day of November, 1979. (Check one of the following)
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by the shareholders in accordance with Section 611
(2), Act [ILLEGIBLE],
Public Acts of 1972, as amended. The necessary number of shares as required by
statute were voted in favor of the amendment. |
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by written consent of the shareholders having not less then the minimum number of votes
required by statute in accordance with Section 407 (1) and (2), Act [ILLEGIBLE]. Public Acts of
1972, as amended. Written notices to shareholders who have not consented in writing has been given.
(Note: Written consent by less then all of the shareholders is permitted only if such provision
appears in Articles of Incorporation.) |
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by written consent of all the shareholders entitled to vote in accordance with
Section 407 (3), Act [ILLEGIBLE], Public Acts of 1972, as amended. |
Resolved, that Article I of the Articles of Incorporation be amended to read as
follows: (Any article being amended is required to be set forth in its entirety.)
The name of the corporation is WHITES SANITARY LANDFILL, INC.
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Signed this 1st day of November, 1979 |
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BY
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/s/ Annette Harland |
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(Signature of President, Vice-President, Chairperson or Vice-Chairperson) |
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ANNETTE HARLAND, President |
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(Type or Print Name and Title) |
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[ILLEGIBLE]
MICHIGAN DEPARTMENT OF COMMERCE CORPORATION AND SECURITIES BUREAU
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F I L E D
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Date Received |
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FEB 4 1982
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January 19, 1982 |
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Administrator
MICHIGAN DEPARTMENT OF COMMERCE
Corporation & Securities Bureau |
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CORPORATION
NUMBER 129 - 780
(See Instructions on Reverse Side)
(For Use by Domestic Corporations)
CERTIFICATE OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
The undersigned corporation executes the following Certificate of Amendment to its
Articles of Incorporation pursuant to the provisions of Section 631, Act 284, Public Acts of
1972, as amended:
1. The name of the corporation is WHITES SANITARY LANDFILL, INC.
2. The location of the registered office is
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2121 Hill Road
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Manistee
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Michigan
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49660 |
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(No. and Street)
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(Town or City)
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(Zip Code) |
3. The following amendment to the Articles of Incorporation was adopted on the
3rd day of January, 1982. (Check one of the following)
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by the shareholders in accordance with Section 611 (2), Act 284, Public
Acts of 1972, as amended. The necessary number of shares as required by statute
were voted in favor of the amendment. |
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by written consent of the shareholders having not less then the minimum number of votes
required by statute in accordance with Section 407 (1) and (2), Act 284, Public Acts of 1972, as
amended. Written notice to shareholders who have not consented in writing has been given.
[Note: Written consent by less then all of the shareholders is permitted only if such provision
appears in Articles of Incorporation.) |
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by written consent of all the shareholders entitled to vote in accordance with Section 407
(3), Act [ILLEGIBLE], Public Acts of 1972, as amended. |
Resolved, that Article I of the Articles of Incorporation be amended to read as
follows: (Any article being amended is required to be set forth in its entirety.)
The name of the Corporation is HARLANDS SANITARY LANDFILL, INC.
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Signed this 15th day of January, 1982
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BY
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/s/ Annette Harland |
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(Signature of President, Vice-President, Chairperson or Vice-Chairperson) |
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Annette Harland, Vice-President/Secretary |
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(Type or Print Name and Title) |
exv3w553
Exhibit 3.553
Exhibit 2
BY-LAWS
OF
HARLANDS SANITARY LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be Harlands Sanitary Landfill, Inc., c/o USA Waste Services, Inc., 1001 Fannin, Suite 4000,
Houston, Texas 77002.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and without the State of Michigan as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Michigan, as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect directors
and transact such other business as may properly be brought before the meeting. Written notice of
each annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Special meetings of stockholders may be called by
the President or the Board of Directors. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any
business may be transacted which might have been transacted at the meeting as originally noticed.
If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, (i) any question brought before any meeting of stockholders shall
be decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat and (ii) each stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat held by such
stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after
three (3) years from its date, unless such proxy provides for a longer period. The Board of
Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholders
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors consisting of not
less than one director, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors then in office. At each
annual meeting of stockholders beginning with the first, successor directors shall be elected.
Each director shall hold office until the ensuing meeting and until such directors successor is
elected and qualified or until such directors earlier death, resignation, or removal.
Directors of the Corporation may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the
Corporations Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of Michigan. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the President or any two directors. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the time of the meeting, by telephone, electronic facsimile or
telegram not less than twenty-four (24) hours before the time of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Corporations Certificate of Incorporation or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Corporations
Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Corporations Certificate of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this Section 7 of this
Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether or not such
members constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required.
Section 9. Compensation. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be
less than a quorum; or (ii) the material facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The offices of the Corporation shall be chosen by the
Board of Directors and shall be a President and a Secretary. The Board of Directors, in its
discretion, may also choose one Treasurer and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Corporations Certificate of Incorporation or these
By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor need such
officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting held after
each annual meeting of stockholders shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries and other compensation of
all officers of the Corporation shall be fixed by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. The President. The President shall be the chief executive officer
and the chief operating officer of the Corporation, shall have general direction of the business
and affairs of the Corporation and general supervision over its several officers, subject, however,
to the control of the Board of Directors and shall see that all orders and resolutions of the Board
of Directors are carried into effect. The President may sign, with the Secretary or Assistant
Secretary, certificates representing shares of stock of the Corporation. The President shall
execute and deliver, in the name and on behalf of the Corporation, (i) contracts or other
instruments authorized by the Board of Directors and (ii) contracts or instruments in the usual and
regular course of business except in cases when the execution and delivery thereof shall be
expressly delegated or permitted by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation, and, in general, shall perform all duties incident to the office of
President and such other duties as from time to time may be assigned to him by the Board of
Directors or as are prescribed by these Bylaws.
Section 5. Vice Presidents. Vice Presidents, if there be any, shall perform
such duties and may exercise such other powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors. The Vice President may sign certificates of stock of
the Corporation. In the absence or disability of the President, a Vice President may preside at
meetings of the stockholders and the Board of Directors.
Section 6. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or the President. If the Secretary shall be
unable or shall refuse to cause to be given notice of all meetings of the stockholders and special
meetings
of the Board of Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by such officers
signature. The Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or filed, as the case
may be.
Section 7. Treasurer. The Treasurer, if there be one, shall have the custody
of the corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of all his transactions as Treasurer and of the financial
condition of the Corporation.
Section 8. Assistant Secretaries. Except as may be otherwise provided in these
By-Laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the Secretary or in the event
of the Secretarys disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 9. Assistant Treasurers. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of the Treasurers disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer.
Section 10. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or a Vice President and (ii) by the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owners
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, such notice may be given by mail, addressed to such director, member of
a committee or stockholder, at his address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given
at the time when the same
shall be deposited in the United States mail. Written notice may also be given personally or by
electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Corporations Certificate of Incorporation or these By-Laws, to be given to any director, member of
a committee or stockholder, a waiver thereof in writing, signed, by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Corporations Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in
property, or in shares of the capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal, if there shall be one, shall be
in such form as the Board of Directors may prescribe.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those by
or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such persons conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that such person did
not act in good faith and in a manner which such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or officer, of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there are no such directors or if such
directors so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe such
persons conduct was unlawful, if such persons action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers
of the Corporation or another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or another
enterprise. The term another enterprise as used in this Section 4 of this Article VIII shall mean
any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this Section 4 of this Article VIII shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to
have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Michigan for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 of this Article VIII shall be
given to the Corporation promptly upon the filing of such application. If successful, in whole or
in part, the director or officer seeking indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding may be
required by the Board of Directors to be paid (upon such terms and conditions, if any, as the Board
deems appropriate) by the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in a persons official capacity
and as to action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any person who is not specified in Section 1 of
Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the General Corporation Law of the State of Michigan, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against such person and incurred by him in any such capacity, or arising
out of such persons status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions of this Article
VIII.
Section 9. Certain Definitions. For purposes of this Article VIII, references
to the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors and officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this Article VIII with respect to the resulting
or surviving corporation as such indemnification relates to such persons acts while serving in any
of the foregoing capacities, of such constituent corporation, as such person would have with
respect to such constituent corporation if its separate existence had continued. For purposes of
this Article VIII, references to fines shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to serving at the request of the Corporation
shall include any service as a director or officer of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of the
Corporation as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything contained in
this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Except as otherwise provided in the Corporations Certificate of
Incorporation, these By-Laws may be altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice
of such meeting of stockholders or Board of Directors as the case may be. Except as otherwise
provided in the Corporations Certificate of Incorporation, all such amendments must be approved
by either the holders of a majority of the outstanding capital stock entitled to vote thereon or
by a majority of the entire Board of Directors then in office.
exv3w554
Exhibit 3.554
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F0100-Page 1 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
Certificate of Formation
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The undersigned, pursuant to Senate Bill No. 2395, Chapter 402, Laws
of 1994, hereby executes the following document and sets forth:
1. Name of the Limited Liability Company
Harrison County Landfill, LLC
2. The future effective date is
(Complete if applicable)
3. Federal Tax ID
TBA
4. Name and Street Address of the Registered Agent and Registered Office is
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Name
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C T Corporation System |
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Physical
Address
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c/o C T Corporation System. 645 Lakeland East Drive, Suite 101 |
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P.O. Box
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City,
state, ZIP5, ZIP4 Flowood MS 39232
5. If the Limited Liability Company is to have a specific date of dissolution, the
latest date upon which the Limited Liability Company is to dissolve
Perpetual
6. Is full
or partial management of the Limited Liability Company vasted in a
manager or managers? (Mark appropriate box)
o Yes þ No
7. Other matters the managers or members elect to include
Allied Waste North America, Inc. (Sole Member)
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F0100-Page 2 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE
P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333
Certificate of Formation
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By:
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Signature
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(Please keep writing within blocks) |
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Printed Name
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Jo Lynn White
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Title Secretary |
Street and Mailing Address
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Physical
Address
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15880 N. Greenway-Hayden Loop, Suite 100 |
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P.O. Box
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City, state, ZIPS, ZIP4
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Sconsdale
AZ 85260 |
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By:
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Signature
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(Please keep writing within blocks) |
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Printed Name
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Dale L. Parker
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Title Vice President |
Street and Mailing Address
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Physical
Address
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15880 N. Greenway-Hayden Loop, Suite 100 |
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P.O. Box
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City, state, ZIP5, ZIP4
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Sconsdale AZ
85260 |
exv3w555
Exhibit 3.555
OPERATING AGREEMENT OF
HARRISON COUNTY LANDFILL, LLC
This Operating Agreement is executed as of August 5, 2003, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is Harrison County Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Mississippi law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Mississippi
shall be CT Corporation System, 645 Lakeland East Drive, Suite 101, Flowood, Mississippi, County
of Harrison. The registered office may be changed to any other place within the State of
Mississippi upon the consent of the Member. The Company may maintain a registered office in any
state within which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Mississippi are CT Corporation System, 645
Lakeland East Drive, Suite 101, Flowood, Mississippi. The Companys agent for service of legal
process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Mississippi, and shall continue in perpetuity until the Company is dissolved
as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Mississippi. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company,
which shall bear interest and be repaid on such reasonable terms and conditions as may be
approved
by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
2
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 29-802 of the Act.
3
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 29-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Mississippi Secretary of State or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all
of the remaining property and assets of the Company have been distributed to the Member, a
certificate of cancellation shall be executed and filed by the Member with the Mississippi
Secretary
of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
4
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Mississippi Law. The laws of the State of Mississippi shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the rights and duties
of the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Mississippi Limited Liability Company Act, as set forth in Miss. Code
Ann. Tit. 79, § 29-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
5
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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6
EXHIBIT A
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Initial Capital |
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Contribution |
Name and Address of the Member
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$ |
100.00 |
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Allied Waste North America, Inc.
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15880 N Greenway-Hayden Loop |
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Suite 100
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Scottsdale, AZ 85260 |
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exv3w556
Exhibit 3.556
[ILLEGIBLE]
HONEYGO RUN RECLAMATION CENTER, INC.
(A Maryland Close Corporation)
ARTICLES OF INCORPORATION
FIRST: I, WAYNE B. KNIGHT, whose post office address is 8814 Cowenton Avenue,
Perry Hall, Maryland 21128, being at least eighteen (18) years of age, hereby form a corporation
under and by virtue of the General Laws of the State of Maryland.
SECOND: The name of the corporation, which is
hereinafter referred to as the
Corporation, is HONEYGO RUN RECLAMATION CENTER, INC.
THIRD: The Corporation shall be a close corporation as authorized by Title 4 of the
Corporations and Associations Article of the Annotated Code of Maryland, as amended.
FOURTH: The purposes for which the Corporation is formed are:
1. To engage in the business of operating a rubble landfill and
recycling of non-toxic construction waste.
2. To do anything permitted by Section 2-103 of the Corporations and Associations Article of
the Annotated Code of Maryland, as amended from time to time.
FIFTH: The post office address of the principal office of the corporation in this State is
8814 Cowenton Avenue, Perry Hall, Maryland 21128. The name and post office address of the Resident
Agent of the Corporation in this State is: Daniel J. Hanley, Esquire, 206 Washington Avenue, P.O.
Box 5506, Towson, Maryland 21204. Said Resident Agent is an individual actually residing in this
State.
LAW OFFICES
HANLEY AND HANLEY
206 WASHINGTON AVE.
P.O. BOX 5506
TOWSON, MARYLAND 21204
(410) 823-1174
SIXTH: The total number of shares of capital stock which the
Corporation has authority to issue is as follows:
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Two Thousand Five Hundred (2,500)
shares of Class-A Voting Common Stock without par value; |
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2. |
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Two Thousand Five Hundred (2,500) shares of Class-B Non-Voting Common Stock without
par value; |
SEVENTH: The Corporation elects to have no Board of Directors effective
at the latter of:
(1) The time that the organizational Meeting of Directors and
the issuance of at least one (1) share of stock in the Corporation are
completed; or
(2) The time this charter document in which said election has been made becomes effective.
In the interim period Wayne B. Knight shall serve as Director of the
Corporation.
EIGHTH: The Corporation, upon unanimous approval of the
stockholders, reserves the right to make from time to time any amendments
of its charter which may now or hereafter be authorized by law.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation, this
14 day of July, 1992, and I acknowledge the same to be my act.
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/s/ [ILLEGIBLE]
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/s/ Wayne B. Knight
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(SEAL) |
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Witness
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Wayne B. Knight |
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LAW OFFICES
HANLEY AND HANLEY
206 WASHINGTON AVE.
P.O. BOX 5506
TOWSON, MARYLAND 21204
(410) 823-1174
ARTICLES OF AMENDMENT
A CLOSE CORP.
(1)
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HONEYGO RUN RECLAMATION CENTER, INC.
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a Maryland corporation hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
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The charter of the corporation is hereby amended as follows: |
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Article Three is deleted in its entirety. |
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Article Seven is deleted in its entirety. |
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This amendment of the charter of the corporation has been approved by the stockholders.
This is a close corporation that has elected to have no directors. |
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We the undersigned President and Secretary swear under penalties of perjury that the
foregoing is a corporate act. |
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(5)
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/s/ David A. Barclay
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(5 |
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/s/ James E. OConnor
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Secretary
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President |
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David A. Barclay
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James E. OConnor |
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Return address of filing party: |
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The Corporation Trust Incorporated |
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300 East Lombard Street |
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Baltimore, MD 21202 |
STATE OF MARYLAND
I hereby
certify that this is a true and complete copy of the
[ILLEGIBLE] on file in this office. DATE: 6-12-09.
STATE DEPARTMENT OF ASSESSMENTS AND TAXATION
By: /s/
[ILLEGIBLE],
Custodian [ILLEGIBLE] replaces our previous certification system. Effective: 6/95
exv3w557
Exhibit 3.557
AMENDED AND RESTATED BYLAWS
OF
HONEYGO RUN RECLAMATION CENTER, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days
(unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
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number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
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or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at
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or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their votes are counted for such purpose if (i)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee, in good faith, authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board
of Directors. Except where by law the signature of the President is required, the Chairman of
the Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Executive Vice President, or if there is no Executive Vice President,
the Vice President or the Vice Presidents if there are more than one (in the order designated by
the Board of Directors) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the President. Each Vice
President shall perform such other duties and have such other powers as the Board of Directors
from time to time may prescribe. If there is no Chairman of the Board of Directors and no Vice
President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings thereat in a book
or books
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to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w558
Exhibit 3.558
PARTNERSHIP AGREEMENT
OF
ILLIANA DISPOSAL PARTNERSHIP
This Partnership Agreement is entered into as of December 31, 1997, among Illiana Disposal
Service, Inc., an Indiana corporation, Service Waste, Inc., an Indiana corporation, and Allied
Waste Landfill Holdings, Inc., a Delaware corporation, each individually referred to herein as a
Partner, and collectively as Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Illiana Disposal Partnership. The name of the
Partnership may be changed upon the consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880
North Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050, unless
the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions
described in Section 2.2 hereof, no Partner shall be obligated to make additional capital
contributions to the Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no
Partner shall withdraw any capital contributions or any portion of such Partners Capital
Account without the written consent of the other Partner. Under circumstances requiring a
return of capital, no Partner shall have the right to receive property other than cash,
except as may be specifically provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or
drawing with respect to such Partners capital contributions or Capital Account or for
services rendered for or on behalf of the Partnership, unless agreed upon in writing by all
Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or
will be deemed to benefit any creditor of the Partnership, and no creditor of the
Partnership will be entitled to require the Partners to solicit capital contributions from
any Partner or to make any capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners,
any Partner may make loans (Partner Loans) to the Partnership, which shall bear interest
and be repaid on such reasonable terms and conditions as may be approved by a Majority in
Interest of the Partners. No Partner shall be required to make a Partner Loan unless such
Partner has agreed in writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or
times as may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set
forth in Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated
to the Partners in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-1(b) and
1.704-2. If the Partnership incurs nonrecourse deductions or partner nonrecourse deductions,
or if there is any change in the Partnerships minimum gain, as defined in such Regulations, the
allocation of Profits, Losses and items thereof to the Partners shall be modified in a reasonable
manner deemed necessary or advisable by the Partners, upon appropriate legal or tax advice, to
comply with such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority
in Interest of the Partners. The Partners shall devote such time and effort as is necessary for
the management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the
Partnership in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall
coordinate with the Partnerships accountants the preparation of tax information and tax returns
relating to the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge, hypothecation or
other disposition of a Partnership interest in violation of this Section 8 shall be void and shall
not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any
of the following events:
(a) The expiration of the term of the Partnership as set forth herein, unless that term
is extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take
full account of the Partnerships liabilities and property, and the Partnerships property
shall be liquidated as promptly as is consistent with obtaining the fair value thereof.
During the period of liquidation, the business and affairs of the Partnership shall continue
to be governed by the provisions of this Agreement. The proceeds from liquidation of the
Partnerships property, to the extent sufficient therefor, shall be applied and distributed
in the following order:
(a) To the payment and discharge of all of the Partnerships debts and
liabilities and the establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the
Partners shall look solely to the assets of the Partnership for the return of their capital
contributions and shall have no right or power to demand or receive property other than
cash from the Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or
permitted to be given by any provision of this Agreement shall be in writing and shall be
delivered personally to the Partner to whom the same is directed, or sent by regular,
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership, to the Partnership at the address set forth in Section 1.5 hereof, or to such
other address as the Partnership may from time to time specify by notice to the Partners in
accordance with this Section 10.1, or, if to a Partner, to such Partner at the address for
such Partner set forth below the Partners name on Exhibit A, or to such other address as
the Partner may from time to time specify by notice to the Partnership in accordance with
this Section 10.1. Any such notice shall be deemed to be delivered, given and received for
all purposes as of the date so delivered, if delivered personally or if sent by regular
mail, or as of the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, if sent by registered or certified mail,
postage and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that
it may have to maintain any action for partition with respect to any of the Partnerships
property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended from
time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account
maintained for such Partner in accordance with Code § 704(b) and Regulations promulgated
thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time
(or any corresponding provisions of succeeding law).
Majority in Interest of the Partners means Partners owning a simple majority
of the Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all
sources, less the portion thereof used to pay or establish reserves for (1) Partnership
expenses, (2) debt payments, (3) contingencies, or (4) authorized Partnership investments
or loans, all as reasonably determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached
hereto and any other Person admitted as a Partner pursuant to Section 8 hereof or pursuant
to an amendment adopted in accordance with Section 7 hereof. Partners means all
such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any
Partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
Percentage Interest means the Partners interests, expressed as a
percentage, in certain Profits, Losses and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A attached hereto.
Person means any individual, partnership, corporation, trust, limited
liability company or other entity.
Profits and Losses mean, for each fiscal year or other period, an
amount equal to the Partnerships taxable income or loss for such year or period, determined
in accordance with Code Section 703(a), adjusted as deemed necessary by the Partners to
comply with Code Section 704(b) and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as
such regulations may be amended from time to time (including corresponding provisions of
succeeding regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Illiana Disposal
Service, Inc. |
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Allied Waste Landfill Holdings, Inc., |
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an Indiana corporation |
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a Delaware corporation |
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By:
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/s/ Larry D. Henk
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By:
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/s/ D. W. Slager
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Its:
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Vice President
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Its:
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President |
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Service Waste, Inc. |
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an Indiana corporation |
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By:
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/s/ D. W. Slager |
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Its:
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Executive Vice President |
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
|
Interest |
Illiana Disposal Service, Inc. 15880 North Greenway Hayden Loop
Suite 100 Scottsdale, Arizona 85260
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All right, title and interest in and
to the operating assets and liabilities
of its waste operations
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58 |
% |
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Service, Inc. 15880 North Greenway Hayden Loop
Suite 100 Scottsdale, Arizona 85260
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All right, title and interest in and to the
operating assets and liabilities of its waste operations
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41 |
% |
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Allied Waste Landfill Holdings, Inc. 15880 North Greenway Hayden Loop
Suite 100 Scottsdale, Arizona 85260
|
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$ 75,195 |
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1 |
% |
FIRST AMENDMENT TO PARTNERSHIP AGREEMENT OF
ILLIANA DISPOSAL PARTNERSHIP
This
First Amendment to Partnership Agreement of Illiana Disposal Partnership (the
First Amendment) is entered into effective as of December 1, 1998, by and between Allied
Waste North America, Inc., a Delaware corporation (AWNA) and Allied Waste Landfill
Holdings, Inc., a Delaware corporation (AWLH)(collectively, the Partners).
RECITALS
J. Illiana Disposal Partnership (the Partnership) was formed as an Indiana general
partnership pursuant to that certain Partnership Agreement of
Illiana Disposal Partnership,
dated as of December 31,1997 (the Agreement) between Illiana Disposal Service, Die. and
Service Waste, Inc. both Indiana corporations (collectively Illiana) and AWLH. Unless
specifically defined herein, capitalized terms appearing in this First Amendment shall have
the meanings given those terms in the Agreement.
K. Pursuant to an Agreement and Plan of Merger between Illiana and AWNA, among others,
dated October 30, 1998, Illiana merged with and into AWNA, resulting in a transfer by
operation of law of Illianas interest in the Partnership to AWNA.
L. The Partners desire to acknowledge the merger and the admission of AWNA as a
substituted partner of the Partnership, on the terms and conditions set forth in this First
Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
7. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of Illianas interest in the
Partnership to AWNA and (b) the admission of AWNA as a substituted partner.
8. Acceptance. AWNA hereby acknowledges the assumption of all of AWIIs
responsibilities and obligations with respect to the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its
entirety to read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First
Amendment, all terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ D. W. Slager
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D. W. Slager, Vice President |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
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By: |
/s/ D. W. Slager
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D. W. Slager, President |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste North America, Inc.
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99 |
% |
15880 N. Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 N. Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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TOTAL
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100 |
% |
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-3-
exv3w559
Exhibit 3.559
Pursuant to the nrovisiom of The Business Coronation Act of 1983, that undersigned
incorporator(t) hereby adopt that following Articles of Incorporation.
ARTICLE ONE That name of the corporation it
ARTICLE TWO That ntmt end tddrtn of the Initial rteitttrtd aoant tnd Its rtgdttrtd afflicts
area:
The operation of a landfill in the State of Illinois, County of Iroquois and other areas of
the state wherever landfills may be acquired, all activities and services attendant to the
operation of a landfill
ARTICLE POUR Paragraph 1: The authorized intern thatll bt:
Paragraph 2: Tht prtftrtnctt, qualifications. limitations, rtttrlctiont tnd tht
tnadal or rtittivt rights In raspact of tht shares of tach data art: none |
and tht nemoi and iddmrn of th> ptnom wrfio art to ssm as dltictort umw tht
West annual mstttna of sharinofcstri o? until tnetr suoommti o§ wodM and
Qualify era?
ARTICLEUVER OPTIONAL
ARTICLE EIGHT OTHER fMOVWONS
Tho undersigned incorporator(s) hereby declere(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true. |
exv3w560
Exhibit 3.560
BYLAWS
OF
ILLINOIS LANDFILL, INC.
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meetings. Annual meetings of the shareholders of Illinois
Landfill, Inc., (the Corporation) shall be held at such date, time and place, within or without
the State of Illinois, as shall be designated by the Board of Directors.
Section 1.2. Special Meetings. Special meetings of the shareholders of the
Corporation may be called at any time by the Board of Directors or the President and shall be
called by the Board of Directors if the Secretary receives written, dated, and signed demands for a
special meeting, describing in reasonable detail the purpose or purposes for which it is to be
held, from the holders of shares representing at least 25 percent of all votes entitled to be cast
on any issue proposed to be considered at the proposed special meeting. If the Secretary receives
one or more proper written demands for a special meeting of shareholders, the Board of Directors
may set a record date for determining shareholders entitled to make such demand. The Board of
Directors or the President, as the case may be, calling a special meeting of shareholders shall set
the date, time, and place of such meeting, which may be held within or without the State of
Illinois.
Section 1.3. Notices. A written notice, stating the date, time, and place of any
meeting of the shareholders, and in the case of a special meeting the purpose or purposes for
which such meeting is called, shall be delivered or mailed by the Secretary of the Corporation, to
each shareholder of record of the Corporation entitled to notice of or to vote at such meeting no
fewer than ten nor more than sixty days before the date of the meeting, or as otherwise provided
by the Corporation Law. In the event of a special meeting of shareholders required to be called as
the result of a demand therefor made by shareholders, such notice shall be given no later than the
sixtieth day after the Corporations receipt of the demand requiring the meeting to be called.
Notice of shareholders meetings, if mailed, shall be mailed, postage prepaid, to each shareholder
at his address shown in the Corporations current record of shareholders.
A shareholder or his proxy may at any time waive notice of a meeting if the waiver is in
writing and is delivered to the Corporation for inclusion in the minutes or filing with the
EXHIBIT A
Corporations records. A shareholders attendance at a meeting, whether in person or by proxy,
(a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder
or his proxy at the beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (b) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice, unless the shareholder
or his proxy objects to considering the matter when it is presented. Each shareholder who has in
the manner described above waived notice or objection to notice of the shareholders meeting shall
be conclusively presumed to have been given due notice of such meeting (including the purpose or
purposes thereof if such shareholder in the manner described above waived objection to the
consideration of a particular matter).
If an annual or special shareholders meeting is adjourned to a different date, time, or
place, notice need not be given of the new date, time, or place if the new date, time, or place is
announced at the meeting before adjournment, unless a new record date is or must be established
for the adjourned meeting.
Section 1.4. Participation by Conference Telephone. Any or all shareholders
may participate in a regular or special meeting by, or through the use of any means of
communication, such as conference telephone, by which all shareholders participating may
simultaneously hear each other during the meeting. A shareholder participating in a meeting
by such means shall be deemed to be present in person at the meeting.
Section 1.5. Written Consents. Any action required or permitted to be taken
at any meeting of the shareholders may be taken without a meeting if the action is taken by all
shareholders. The action must be evidenced by one or more written consents describing the action
taken, signed by each shareholder, and included in the minutes or filed with the corporate records
reflecting the action taken. Action taken under this Section 1.5 is effective when the last
shareholder signs the consent, unless the consent specifies a different prior or subsequent
effective date, in which case the action is effective on or as of the specified date. A consent
signed under this Section 1.5 has the effect of a meeting vote and may be described as such in any
document.
Section 1.6. Voting. Except as otherwise provided by the Corporation Law or the
Corporations Articles of Incorporation, each capital share of any class of the Corporation that
is outstanding at the record date and represented in person or by proxy at the annual or special
meeting shall entitle the record holder thereof, or his proxy, to one vote on each matter voted on
at the meeting.
2
Section 1.7. Quorum. Unless the Corporations Articles of Incorporation or the
Corporation Law provide otherwise, at all meetings of shareholders a majority of the votes entitled
to be cast on a matter, represented in person or by proxy, constitutes a quorum for action on the
matter. Action may be taken at a shareholders meeting only on matters with respect to which a
quorum exists; provided, however, that any meeting of shareholders, including annual and special
meetings and any adjournments thereof, may be adjourned to a later date although less than a quorum
is present. Once a share is represented for any purpose at a meeting, it is deemed present for
quorum purposes for the remainder of the meeting and for any meeting held pursuant to an
adjournment of that meeting unless a new record date is or must be set for that adjourned meeting.
Section 1.8. Vote Required to Take Action. If a quorum exists as to a matter
to be considered at a meeting of shareholders, action on such matter (other than the election of
Directors) is approved if the votes properly cast favoring the action exceed the votes properly
cast opposing the action, unless the Corporations Articles of Incorporation or the Corporation
Law require a greater number of affirmative votes. Directors shall be elected by a plurality of
the votes properly cast.
Section 1.9. Record Date. Only such persons shall be entitled to notice of or
to vote, in person or by proxy, at any shareholders meeting as shall appear as shareholders upon
the books of the Corporation as of such record date as the Board of Directors shall determine,
which date may not be earlier than the date seventy days immediately preceding the meeting unless
otherwise permitted by the Corporation Law. In the absence of such determination, the record date
shall be the fiftieth day immediately preceding the date of such meeting. Unless otherwise
provided by the Board of Directors, shareholders shall be determined as of the close of business
on the record date.
Section 1.10. Proxies. A shareholder may vote his shares either in person or
by proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder
(including authorizing the proxy to receive, or to waive, notice of any shareholders meetings
within the effective period of such proxy) by signing an appointment form, either personally or by
the shareholders attorney-in-fact. An appointment of a proxy is effective when received by the
Secretary or other officer or agent authorized to tabulate votes and is effective for 11 months
unless a different period is expressly provided in the appointment form. The proxys authority may
be limited to a particular meeting or may be general and authorize the proxy to represent the
shareholder at any meeting of shareholders held within the time provided in the appointment form.
Subject to the Corporation Law and to any express limitation on the proxys authority appearing on
the face of the appointment form, the Corporation is entitled to accept the proxys vote or other
action as that of the shareholder making the appointment.
3
ARTICLE II
Directors
Section 2.1. Number and Term; Authority. The business of
the Corporation shall be managed by a Board of Directors consisting of at least one Director and no
more than five Directors. The exact number of Directors of the Corporation shall be fixed by the
Board of Directors within the range established by the preceding sentence, and may be changed
within that range from time to time by the Board of Directors. Each Director shall be elected for a
term of office to expire at the annual meeting of shareholders next following his election. The
Director shall continue to serve until his successor is elected and qualified, or until the earlier
of his death, resignation, disqualification, or removal by shareholders, or until there is a
decrease in the number of Directors; provided, however, that a Director cannot be removed by such
decrease unless in connection with an election of Directors by shareholders.
The Directors and each of them shall have no authority to bind the Corporation except when
acting as a Board or a Committee established by the Board and granted authority to bind the
Corporation.
Section 2.2. Quorum and vote Required to Take Action. A
majority of the whole Board of Directors (the size of which shall be determined in accordance
with the latest action of the Board of Directors fixing the number of Directors) shall be
necessary to constitute a quorum for the transaction of any business, except the filling of
vacancies. If a quorum is present when a vote is taken, the affirmative vote of a majority of the
Directors present shall be the act of the Board of Directors, unless the act of a greater number
is required by the Corporation Law, the Corporations Articles of Incorporation, or these Bylaws.
Section 2.3. Annual and Regular Meetings. The Board of
Directors shall meet annually, without notice, on the same day as the annual meeting of the
shareholders, for the purpose of transacting such business as properly may come before the
meeting. Other regular meetings of the Board of Directors, in addition to said annual meeting,
shall be held on such dates, at such times, and at such places as shall be fixed by resolution
adopted by the Board of Directors or otherwise communicated to the Directors. The Board of
Directors may at any time alter the date for the next annual meeting of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may
be called by the President or any member of the Board of Directors upon not less than 24 hours
notice given to each Director of the date, time, and place of the meeting, which notice need not
specify the purpose or purposes
4
of the special meeting. Such notice may be communicated in person (either in writing or orally), by
telephone, telegraph, teletype or other form of wire or wireless communication or by mail, and
shall be effective at the earlier of the time of its receipt or, if mailed, five days after its
mailing. Notice of any meeting of the Board may be waived in writing at any time if the waiver is
signed by the Director entitled to the notice and is filed with the minutes or corporate records. A
Directors attendance at or participation in a meeting waives any required notice to the Director
of the meeting, unless the Director at the beginning of the meeting (or promptly upon the
Directors arrival) objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 2.5. Written Consents. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if
the action is taken by all members of the Board. The action must be evidenced by one or more
written consents describing the action taken, signed by each Director, and included in the minutes
or filed with the corporate records reflecting the action taken. Action taken under this Section
2.5 is effective when the last Director signs the consent, unless the consent specifies a
different prior or subsequent effective date, in which case the action is effective on or as of
the specified date. A consent signed under this Section 2.5 has the effect of a meeting vote and
may be described as such in any document.
Section 2.6. Participation, by Conference Telephone. The Board of Directors
may permit any or all Directors to participate in a regular or special meeting by, or through the
use of, any means of communication, such as conference telephone, by which all Directors
participating may simultaneously hear each other during the meeting. A Director participating in a
meeting by such means shall be deemed to be present in person at the meeting.
Section 2.7. Committees.
(a) The Board of Directors may create one or more committees and appoint members of the Board
of Directors to serve on them, by resolution of the Board of Directors adopted by a majority of
all the Directors in office when the resolution is adopted. Each committee may have one or more
members, and all the members of a committee shall serve at the pleasure of the Board of Directors.
(b) To the extent specified by the Board of Directors in the resolutions creating a
committee, each committee may exercise all of the authority of the Board of Directors; provided,
however, that a committee may not:
5
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(1) |
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authorize dividends or other distributions as defined by the
Corporation Law, except a committee may authorize or approve a
reacquisition of shares if done according to a formula or method prescribed
by the Board of Directors; |
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(2) |
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approve or propose to shareholders action that is required
to be approved by shareholders; |
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(3) |
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fill vacancies on the Board of Directors or on any of its
committees; |
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(4) |
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amend the Corporations Articles of Incorporation; |
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(5) |
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adopt, amend, repeal, or waive any provision of these
Bylaws; or |
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(6) |
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approve a plan of merger not requiring shareholder approval. |
(c) Except to the extent inconsistent with the resolutions creating a committee, Sections 2.1
through 2.6 of these Bylaws, which govern meetings, actions without meetings, notices and waivers
of notice, quorum and voting requirements, and telephone participation in meetings of the Board of
Directors, shall apply to the committee and its members.
ARTICLE III
Officers
Section 3.1
Designation, Selection, and Terms. The officers of the
Corporation shall consist of the President and the Secretary. The officers of the
Corporation shall be elected by the Board of Directors. The Board of Directors may also
elect a Treasurer, Vice Presidents, Assistant Secretaries, and such other officers or
assistant officers as it may from time to time determine by resolution creating the office
and defining the duties thereof. In defining the duties of officers, the Board of Directors
may designate a chief executive officer, a chief operating officer, a chief administrative
officer, a chief financial officer, a chief accounting officer, or similar functional
titles. Officers need not be selected from among the members of the Board of Directors. Any
two or more offices may be held by the same person. The election or appointment of an
officer does not itself create contract rights.
Section 3.2.
Removal. The Board of Directors may remove any officer at any
time with or without cause. Vacancies in such offices, however occurring, may be filled by the
Board of
Directors at any meeting of the Board of Directors.
6
Section 3.3. President. The President shall have and may exercise all of the powers
and duties as are incident to his office or may from time to time be delegated to him by the Board
of Directors.
Section 3.4. Secretary. The Secretary shall be the
custodian of the books, papers, and records of the Corporation and of its corporate seal, if any,
and shall be responsible for seeing that the Corporation maintains the records required by the
Corporation Law (other than accounting records) and that the Corporation files with the Illinois
Secretary of State the annual report required by the Corporation Law. The Secretary shall be
responsible for preparing minutes of the meetings of the shareholders and of the Board of
Directors and for authenticating records of the Corporation, and he shall perform all of the other
duties customary to the office of the Secretary of a corporation.
ARTICLE IV
Indemnification of Officers,
Directors and Other Eligible Persons
Section 4.1. General. To the extent not inconsistent with applicable law,
every Eligible Person shall be indemnified by the Corporation against all Liability and reasonable
Expense that may be incurred by him in connection with or resulting from any Claim:
(a) if such Eligible Person is Wholly Successful with respect to the Claim, or
(b) if not Wholly Successful, then if such Eligible Person is determined, as provided
in either Section 4.3(a) or 4.3(b) of this Article IV, to have:
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conducted himself in good faith; and |
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reasonably believed: |
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in the case of conduct in his
official capacity with the Corporation, that his conduct was
in its best interest; and |
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(ii) |
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in all other cases, that his
conduct was at least not opposed to the best interest of the
Corporation; and |
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in the case of any criminal proceeding,
either: |
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(i) |
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had reasonable cause to believe his conduct was
lawful; or |
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(ii) |
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had no reasonable cause to
believe his conduct was unlawful. |
The termination of any Claim, by judgment, order, settlement (whether with or without court
approval), or conviction or upon a plea of guilty or of nolo contendere, or its equivalent,
shall not create a presumption that an Eligible Person did not meet the standards of conduct set
forth in clause (b) of this Section 4.1. The actions of an Eligible Person with respect to an
employee benefit plan subject to the Employee Retirement Income Security Act of 1974 shall be
deemed to have been taken in what the Eligible Person reasonably believed to be the best interest
of the Corporation or at least not opposed to its best interest if the Eligible Person reasonably
believed he was acting in conformity with the requirements of such Act or he reasonably believed
his actions to be in the interest of the participants in or beneficiaries of the plan.
Section 4.2 . Definitions.
(a) The term Claim as used in this Article IV shall include every pending, threatened, or
completed claim, action, suit, or proceeding and all appeals thereof (whether brought by or in the
right of this Corporation or any other corporation or otherwise), whether civil, criminal,
administrative, or investigative, formal or informal, in which an Eligible Person may become
involved, as a party or otherwise: (i) by reason of his being or having been an Eligible Person,
or (ii) by reason of any action taken or not taken by him in his capacity as an Eligible Person,
whether or not he continued in such capacity at the time a Liability or Expense shall have been
incurred in connection with a Claim.
(b) The term Eligible Person as used in this Article IV shall mean every person (and the
estate, heirs, and personal representatives of such person) who is or was a Director, officer,
employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee, agent, or fiduciary of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other organization or entity, whether
for profit or not. An Eligible Person shall also be considered to have been serving an employee
benefit plan at the request of the Corporation if his duties to the Corporation also imposed
duties on, or otherwise involved services by, him to the plan or to participants in or
beneficiaries of the plan.
(c) The terms Liability and Expense as used in this Article IV shall include, but shall
not be limited to, counsel fees and disbursements and amounts of judgments, fines, or
8
penalties against (including excise taxes assessed with respect to an employee benefit plan), and
amounts paid in settlement by or on behalf of, an Eligible Person.
(d) The term Wholly Successful as used in this Article IV shall mean (i) termination of any
Claim against the Eligible Person in question without any finding of liability or guilt against
him, (ii) approval by a court, with knowledge of the indemnity herein provided, of a settlement of
any Claim, or (iii) the expiration of a reasonable period of time after making or threatened
making of any Claim without the institution of the same, without any payment or promise made to
induce a settlement.
Section 4.3 Procedure.
(a) Every Eligible Person claiming indemnification hereunder (other than one who has been
Wholly Successful with respect to any Claim) shall be entitled to indemnification if it is
determined, as provided in this Section 4.3(a), that such Eligible Person has met the standards of
conduct set forth in clause (b) of Section 4.1. The determination whether an Eligible Person has
met the required standards of conduct shall be made (i) by the Board of Directors by majority vote
of a quorum consisting of Directors not at the time parties to the Claim, and if such a quorum
cannot be obtained, then (ii) by majority vote of a committee duly designated by the Board of
Directors (in which designation, Directors who are parties to the Claim may participate)
consisting solely of two (2) or more Directors not at the time parties to the Claim, and if such a
committee cannot be constituted, then (iii) by the shareholders (but shares owned by or voted
under the control of a Director who is at the time a party to the Claim may not be voted on the
determination), and if there are no shareholders who are entitled to vote pursuant to the
requirements of paragraph (iii), then (iv) by special legal counsel selected by a majority vote of
the full Board of Directors (in which selection, a Director who is a party to the Claim may
participate). If an Eligible Person is found to be entitled to indemnification pursuant to the
preceding sentence, the reasonableness of the Eligible Persons Expenses shall be determined by
the procedure set forth in the preceding sentence, except that if such determination is by special
legal counsel, the reasonableness of Expenses shall be determined by a majority vote of the full
Board of Directors (in which determination, a Director who is a party to the Claim may
participate).
(b) If an Eligible Person claiming indemnification pursuant to Section 4.3(a) of this Article
IV is found not to be entitled thereto, the Eligible Person may apply for indemnification with
respect to a Claim to a court of competent jurisdiction, including a court in which the Claim is
pending against the Eligible Person. On receipt of an application, the court, after giving notice
to the Corporation and giving the
9
Corporation ample opportunity to present to the court any information or evidence relating to the
claim for indemnification that the Corporation deems appropriate, may order indemnification if it
determines that the Eligible Person is entitled to indemnification with respect to the Claim
because such Eligible Person met the standards of conduct set forth in clause (b) of Section 4.1 of
this Article IV. If the court determines that the Eligible Person is entitled to indemnification,
the court shall also determine the reasonableness of the Eligible Persons Expenses.
Section 4.4. Nonexclusive Rights. The right of indemnification provided in
this Article IV shall be in addition to any rights to which any Eligible Person may otherwise be
entitled. Irrespective of the provisions of this Article IV, the Board of Directors may, at any
time and from time to time, (a) approve indemnification of any Eligible Person to the full extent
permitted by the provisions of applicable law at the time in effect, whether on account of past or
future transactions, and (b) authorize the Corporation to purchase and maintain insurance on
behalf of any Eligible Person against any Liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such Liability.
Section 4.5. Expenses. Expenses incurred by an Eligible Person with respect
to any Claim shall be advanced by the Corporation (by action of the Board of Directors, whether or
not a disinterested quorum exists) prior to the final disposition thereof if:
(a) the Eligible Person furnishes the Corporation a written affirmation of his good
faith belief that he has met the standards of conduct specified in Section 4.1(b);
(b) the Eligible Person furnishes the Corporation a written undertaking, executed
personally or on the Eligible Persons behalf, to repay the advance if it is ultimately
determined that the Eligible Person did not meet the standards of conduct specified in
Section 4.1(b); and
(c) the Board of Directors makes a determination that the facts then known would not
preclude indemnification of the Eligible Person.
Section 4.6. Contract. The provisions of this Article IV shall be deemed to
be a contract between the Corporation and each Eligible Person, and an Eligible Persons rights
hereunder with respect to a Claim shall not be diminished or otherwise adversely affected by any
repeal, amendment, or modification of this Article IV that occurs subsequent to the date of any
action taken or not taken by reason of which such Eligible Person becomes involved in a Claim.
10
Section 4.7. Effective Date. The provisions of this Article IV shall
be applicable to Claims made or commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after the adoption hereof.
ARTICLE V
Checks
All checks, drafts, or other orders for payment of money shall be signed in the name of the
Corporation by such officers or persons as shall be designated from time to time by resolution
adopted by the Board of Directors and included in the minute book of the Corporation.
ARTICLE VI
Loans
Such of the officers of the Corporation as shall be designated from time to time by any
resolution adopted by the Board of Directors and included in the minute book of the Corporation
shall have the power, with such limitations thereon as may be fixed by the Board of Directors, to
borrow money in the Corporations behalf, to establish credit, to discount bills and papers, to
pledge collateral, and to execute such notices, bonds, debentures, or other evidences of
indebtedness, and such mortgages, trust indentures, and other instruments in connection therewith,
as may be authorized from time to time by such Board of Directors.
ARTICLE VII
Execution of Documents
The President or any officer designated by the President may, in the Corporations name, sign
all deeds, leases, contracts, or similar documents that may be authorized by the Board of
Directors unless execution is otherwise provided for, required, or directed by the Board of
Directors, the Corporations Articles of Incorporation, the Corporation Law, or other law.
ARTICLE VIII
Shares
Section 8.1 Execution. Certificates for capital shares
of the Corporation shall be signed by the President and the Secretary or two officers designated
from time to time by the Board of Directors and the seal of the Corporation (or a facsimile
thereof), if any, may be thereto affixed. Where any such certificate is also signed by a
transfer agent or a
11
registrar, or both, the signatures of the officers of the Corporation may be facsimiles. The
Corporation may issue and deliver any such certificate notwithstanding that any such officer who
shall have signed, or whose facsimile signature shall have been imprinted on, such certificate
shall have ceased to be such officer.
Section 8.2. Contents. Each certificate shall state on
its face the name of the Corporation and that it is organized under the laws of the State of
Illinois, the name of the person to whom it is issued, and the number and class and the
designation of the series, if any, of shares the certificate represents, and, whenever the
Corporation is authorized to issue more than one class of shares or different series within a
class, each certificate issued after the effectiveness of such authorization shall further state
conspicuously on its front or back that the Corporation will furnish the shareholder, upon his
written request and without charge, a summary of the designations, relative rights, preferences,
and limitations applicable to each class and series and the authority of the Board of Directors to
determine variations in rights, preferences and limitations for future series.
Section 8.3. Transfers. Except as otherwise provided by law or by resolution
of the Board of Directors, transfers of shares of the Corporation shall be made only on the books
of the Corporation by the holder thereof in person or by duly authorized attorney, on payment of
all taxes thereon and surrender for cancellation of the certificate or certificates for such
shares (except as hereinafter provided in the case of loss, destruction, or mutilation of
certificates) properly endorsed by the holder thereof or accompanied by the proper evidence of
succession, assignment, or authority to transfer and delivered to the Secretary or an Assistant
Secretary.
Section 8.4. Share Transfer Records. There shall be entered upon the share
records of the Corporation the number of each certificate issued; the name and address of the
registered holder of such certificate; the number, kind, and class or series of shares represented
by such certificate; the date of issue; whether the shares are originally issued or transferred;
the registered holder from whom transferred; and such other information as is commonly required to
be shown by such records. The share records of the Corporation shall be kept at its principal
office, unless the Corporation appoints a transfer agent or registrar, in which case the
Corporation shall keep at its principal office a complete and accurate shareholders list giving
the name and addresses of all shareholders and the number and class of shares held by each. If a
transfer agent is appointed by the Corporation, shareholders shall give written notice of any
changes in their addresses from time to time to the transfer agent.
12
Section 8.5. Transfer Agents and Registrars. The Board of
Directors may appoint one or more transfer agents and one or more registrars and may require each
share certificate to bear the signature of either or both.
Section 8.6. Loss, Destruction,or Mutilation of Certificates. The holder of any of the shares of the
Corporation shall immediately notify
the Corporation of any loss, destruction, or mutilation of the certificate therefor, and the Board
of Directors may, in its discretion, cause to be issued to him a new certificate or certificates
of shares upon the surrender of the mutilated certificate, or, in the case of loss or destruction,
upon satisfactory proof of such loss or destruction. The Board of Directors may, in its
discretion, require the holder of the lost or destroyed certificate or his legal representative to
give the Corporation a bond in such sum and in such form, and with such surety or sureties as it
may direct, to indemnify the Corporation, its transfer agents and its registrars, if any, against
any claim that may be made against them or any of them with respect to the shares represented by
the certificate or certificates alleged to have been lost or destroyed, but the Board of Directors
may, in its discretion, refuse to issue a new certificate or certificates, save upon the order of
a court having jurisdiction in such matters.
Section 8.7. Form of Certificates. The form of the
certificates for shares of the Corporation shall conform to the requirements of Section 8.2 of
these Bylaws and be in such printed form as shall from time to time be approved by resolution of
the Board of Directors.
ARTICLE IX
Seal
The corporate seal of the Corporation shall, if the Corporation elects to have one, be in the
form of a disc, with the name of the Corporation on the periphery thereof and the word SEAL in
the center.
ARTICLE X
Miscellaneous
Section 10.1. Corporation Law. The provisions of the Corporation Law, as it
may from time to time be amended, applicable to all matters relevant to, but not specifically
covered by, these Bylaws are hereby, by reference, incorporated in and made a part of these
Bylaws. The term Corporation Law as used in these Bylaws means the Illinois Business Corporation
Act of 1983, as it may hereafter from time to time be amended and any statute which may in the
future supersede or replace, in whole or in part, the Corporation Law.
13
Section 10.2. Definition of Articles of Incorporation. The term Articles of
Incorporation as used in these Bylaws means the Articles of Incorporation of the Corporation, as
amended and restated from time to time.
Section 10.3. Amendments. These Bylaws may be rescinded, changed, or amended,
and provisions hereof may be waived, at any annual, regular, or special meeting of the Board of
Directors by the affirmative vote of a majority of the number of Directors then in office, except
as otherwise required by the Corporations Articles of Incorporation or by the Corporation Law.
14
exv3w561
Exhibit 3.561
BCA-2.10
(Rev. Jul. 1984)
Submit in Duplicate
Payment must be made by Certified
Check, Cashiers Check or a Money
Order, payable to Secretary
of
State.
DO NOT SEND CASH!
File #
This
Space for Use By
Secretary of State
Date 11-18-86
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License Fee |
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$ |
.50 |
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Franchise Tax |
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$ |
25.00 |
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Filing Fee |
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$ |
75.00 |
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Clerk |
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$ |
100.50 |
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JIM EDGAR
Secretary of State
State of Illinois
ARTICLES OF INCORPORATION
for
Illinois Recycling Services,
Inc.
Pursuant to the provisions of The Business Corporation Act of 1983, the undersigned
incorporator(s) hereby adopt the following Articles of Incorporation.
ARTICLE ONE
The name of the corporation is Illinois Recycling Services, Inc.
(Shall
contain the word corporation, company.
Incorporated. limited, or an abbreviation thereof)
ARTICLE TWO
The name and address of the initial registered agent and its registered office are:
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Registered Agent
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James
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L. |
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Elsesser |
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First Name
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Middle Name
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Last Name |
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Registered Office
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120 |
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W. Madison
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Suite 1310 |
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Number
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Street
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Suite * (A P.O. Box alone is not acceptable) |
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Chicago
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00602 |
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Cook |
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City
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Zip Code
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County |
ARTICLE THREE
The purpose or purposes for which the corporation is organized are:
If
not sufficient space to cover this point, add one or more sheets of
this size.
the sale, service, recycling, transportation, packaging and storage of materials of every type,
kind, nature and description together with general corporate business purposes to carry out the
foregoing purposes.
ARTICLE FOUR
Paragraph 1: The authorized shares shall be:
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Class |
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*Par Value per share |
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Number of shares authorized |
Common
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N/A
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100,000 |
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Paragraph 2: The preferences, qualifications, limitations, restrictions and the special or relative
rights in respect of the shares of each class are:
If
not sufficient space to cover this point, add one or more sheets of this size.
ARTICLE FIVE
The number of shares to be issued initially, and the consideration to be received by
the corporation therefor, are:
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*Par Value |
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Number of shares |
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Consideration to be |
Class |
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Per share |
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proposed to be issued |
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received there for |
Common |
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N/A |
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1000 |
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$ |
1000 |
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$ |
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$ |
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$ |
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TOTAL
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$ |
1000 |
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* |
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A declaration as to a par value is optional. This space may be marked n/a when no reference to
a par value is desired. |
ARTICLE
SIX OPTIONAL
The number of directors constituting the initial board of directors [Illegible] the corporation
is , and the names and addresses of the persons who are to serve as directors until the first
annual meeting of shareholders or until their successors be elected and qualify are:
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Name |
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Residential Address |
Gertrude Ward
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2250 E. 198th St. Lynwood, IL 60411 |
ARTICLE SEVEN
OPTIONAL
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(a)
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It Is estimated that the value of all property to be owned by
the corporation for the following year wherever located will
be:
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$ |
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(b)
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It Is estimated that the value of the property to be located
within the State of Illinois during the following year will
be:
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$ |
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(c)
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It is estimated that the gross amount of business which will
be transacted by the corporation during the following year
will be:
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$ |
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(d)
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It is estimated that the gross amount of business which will
be transacted from places of business in the State of
Illinois during the following year will be:
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$ |
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ARTICLE
EIGHT OTHER PROVISIONS
Attach a separate sheet of this size for any other provision to be included in the Articles of
Incorporation, e.g., authorizing pre-emptive rights; denying cumulative voting; regulating internal
affairs; voting majority requirements; fixing a duration other than perpetual; etc.
NAMES & ADDRESSES OF INCORPORATORS
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements
made in the foregoing Articles of Incorporation are true.
Dated October 17, 1986
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Signatures and Names |
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Post Office Address |
1. |
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/s/ James L. Elsesser |
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1. |
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120 W. Madison Suite 1310
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Signature
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Street |
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James L. Elsesser |
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Chicago, IL 60602
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Name (please print)
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City/Town
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State
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2.
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(Signatures must be in ink on original document. Carbon copy, xerox or rubber stamp signatures may
only be used on confirmed copies)
NOTE: If a
corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by Its President or Vice-President and
verified by him, and attested by its Secretary or an Assistant Secretary.
FILED
NOV 18 1986
JIM EDGAR
Secretary of State
Form BCA-2.10
File No.
ARTICLES OF INCORPORATION
FEE SCHEDULE
The following fees are required to be paid at the time of issuing the Certificate of Incorporation:
FILING FEE $75.00; INITIAL LICENSE FEE of 1/20th of 1% of the consideration to be received for
Initial issued shares (see Art 5), MINIMUM $.50; INITIAL FRANCHISE TAX of 1/10th of 1% of the
consideration to be received for initial issued shares (see Art 5) MINIMUM $25.00.
EXAMPLES OF TOTAL DUE
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Be Received |
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up to $1,000
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100.50 |
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$5,000
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102.50 |
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$ 10,000
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105.00 |
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$25,000
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[ILLEGIBLE]
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$50,000
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150.00 |
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$100,000
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225.00 |
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Includes Filing Fee + License Fee + Franchise Tax |
RETURN TO:
Corporation Department
Secretary of State
Springfield, Illinois 62756
Telephone (217) 782-6961
exv3w562
Exhibit 3.562
AMENDED AND RESTATED BYLAWS
OF
ILLINOIS RECYCLING SERVICES, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Chicago, County of Cook, State of Illinois.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the State of Illinois as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and place, either within
or outside of the State of Illinois , as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such meeting.
Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority
of the capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven months from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than six (6) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the
3
Corporation.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Illinois . Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from
4
time to time, members of the Board of Directors of the Corporation, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a
5
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates
6
and other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these Bylaws or by the Board of
Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to
7
attest the affixing by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
8
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such
9
meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Written notice
may also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any
such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words Corporate Seal,
Illinois. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings bv or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
12
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Illinois for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Illinois , or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against
13
such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
14
exv3w563
Exhibit 3.563
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BCA-2.10 (Rev. Jul. 1984)
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File # |
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JIM EDGAR
Secretary of state
State of Illinois
ARTICLES OF INCORPORATION
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This Space For Use By
Secretary of state
Date 1-8-91
License Fee $ [ILLEGIBLE]
Franchise Tax $ 25.50
Filing Fee $ 75.00
Clerk
100.50
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Pursuant to the provisions of The Business Corporation Act of 1983, the undersigned
incorporator(s) hereby adopt the following Articles of Incorporation.
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ARTICLE ONE |
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The name of the corporation is ILLINOIS VALLEY RECYCLING, INC. |
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(shall contain the word corporation, company,Incorporated |
Limited,
or an abbreviation there of)
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ARTICLE TWO |
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The name and address of the initial registered agent and its registered office are: |
Registered Agent
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H.
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Paul
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DeGroot |
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First Name
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Middle Name
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Last Name |
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Registered Office
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28W270
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Flanders Lane |
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Number
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Street
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Suite (A.P.O. Box alone is not acceptable) |
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Winfield
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60190
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City
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Zip Code
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ARTICLE THREE |
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The purpose or purposes for which the corporation is organized are: |
If not sufficient space to cover this point add one or more
sheets of this size.
Construct, own and operate a recycling facility
and do all acts related thereto in furtherance
of said business.
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ARTICLE FOUR |
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Paragraph 1: The authorized shares shall be: |
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Class |
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Par Value per share |
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Number of shares authorised |
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Common |
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N/P/V |
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10,000 |
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Paragraph 2: The preferences, qualifications, limitations, restrictions and
the special or relative rights in respect of the shares of each class are. |
If not sufficient space to cover this point add one of more
sheets of this size.
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ARTICLE FIVE |
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The number of shares to be issued initially, and the consideration to be received by the corporation therefor, are: |
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Par Value |
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Number of shares |
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Consideration to be |
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per share |
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proposed to be issued |
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received therefor |
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common |
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N/P/V |
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1,000 |
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$ |
1,000 |
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$ |
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$ |
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$ |
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TOTAL |
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1,000 |
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A declaration as to a par value is optional. This space may be marked n/a when no reference
to a par value is desired.
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The number of directors constituting the initial board of directors of the
corporation is 3, and the names and addresses of the persons who are to serve
as directors until the fixed annual meeting of shareholders or until their
successors be elected and qualify are: |
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Name |
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Residential Address |
H. Paul DeGroot
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28W270 Flanders Lane, Winfield, IL 60190 |
Paul Van Der Molen
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ON468 Willow, Wheaton, IL 60187 |
Paul Hettinga
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104 S. Ace, LaGrange, IL 60525 |
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(a) |
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It is estimated that the value of all property to be owned by the corporation for the following year wherever located will be: |
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(b) |
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It is estimated that the value of the property to be located within the State of Illinois during the following year will be: |
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(c) |
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It is estimated that the gross amount of business which will be transacted by the corporation during the following year will be: |
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(d) |
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It is estimated that the gross amount of business which will be transacted from places of business in the State of Illinois during the following year will be: |
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ARTICLE EIGHT |
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OTHER PROVISIONS |
Attach a separate sheet of this size for any other
provision to be included in the Articles of incorporation, e.g.,
authorizing pre-emptive rights: denying cumulative voting; regulating
internal affairs: voting majority requirements: fixing a duration other than perpetual: etc.
NAMES & ADDRESSES OF INCORPORATORS
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements
made in the foregoing Articles of Incorporation are true.
Dated December 13, 1990
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Signatures and Names |
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Post Office Address |
1.
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/s/ H. Paul Degroot
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1. |
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28W270 Flanders Lane |
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signature
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street |
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H. PAUL DEGROOT
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Winfield, IL 60190 |
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Name (please Print)
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City/Town
State
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2.
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2. |
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signature
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street |
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Name (please Print)
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City/Town
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3.
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3. |
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signature
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street |
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Name (please Print)
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State
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(Signatures must be in ink on original document. Carbon copy, xerox or rubber stamp signatures may only be used on conformed copies.)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the
execution shall be by its President or Vice-president and verified by him, and attested by its
Secretary or an Assistant Secretary.
Form BCA-2.10
ARTICLES OF INCORPORATION
FILED
JAN 8 1991
Illinois Secretary of State
FEE SCHEDULE
The following fees are required to be paid at the time of issuing the Certificate of Incorporation:
FILING FEE $75.00: INITIAL LICENSE FEE of 1/20th of 1% of the consideration to be received for initial issued shares
(See Art. 5). MINIMUM $.50:INITIAL FRANCHISE TAX of 1/10 of 1% of the consideration to be received for Initial Issued
shares(See Art. 5). MINIMUM $25.00.
EXAMPLES OF TOTAL DUE
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Consideration to |
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Total |
be Received |
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Due |
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up to $1,000 |
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100.50 |
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$5,000 |
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$ |
102.50 |
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$10,000 |
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$ |
105.00 |
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$25,000 |
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$ |
112.50 |
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$50,000 |
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$ |
150.00 |
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$100,000 |
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$ |
225.00 |
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Includes Filling Fee + License Fee + Franchise Tax
RETURN TO:
Corporation Department
Secretary of State
Springfield, Illinois 62756
Telephone:(217) 782-6961
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Form BCA-10.30
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ARTICLES OF AMENDMENT
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File # 5623-[ILLEGIBLE] |
(Rev. Jan. 1991) |
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George H. Ryan
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FILED
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SUBMIT IN DUPLICATE
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Secretary of State
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JUL 26 1994
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This space for use by |
Department of Business Services
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PAID
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Secretory of State |
Springfield, IL 62756
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JUL 27 1994
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Telephone (217) 782-1832
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GEORGE H. RYAN |
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Date [ILLEGIBLE] |
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SECRETARY OF STATE |
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Franchise Tax $ |
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Filing Fee
$25
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Remit payment in check or money
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Penalty
$ |
order, payable to Secretary of State.
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Approved: [ILLEGIBLE] |
1. CORPORATE NAME: ILLINOIS VALLEY RECYCLING, INC.
(Note 1)
2. MANNER OF ADOPTION:
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The following amendment of the Articles of Incorporation was
adopted on December 15 , 1993 in the manner indicated below. (X one box only) |
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By a majority of the incorporators, provided no directors were named in the
articles of incorporation and no directors have been elected; or by a majority of
the board of directors, in accordance with Section 10.10, the corporation having
issued no shares as of the time of adoption of this amendment; |
(Note 2)
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By a majority of the board of directors, In accordance with Section
10.15, shares having been issued by shareholder action not being required for the
adoption of the amendment; |
(Note 3)
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By the shareholders, In accordance with Section 10.20, a resolution of
the board of directors having been duly adopted and submitted to the shareholders.
At a meeting of shareholders, not less than the minimum number of votes required
by statute and by the articles of incorporation were voted in favor of the
amendment; |
{Note 4)
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By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the board of directors having been duly adopted
and submitted to the shareholders. A consent In writing has been signed by shareholders
having not less than the minimum number of votes required by statute
and by the articles of incorporation. Shareholders
who have not consented in writing have been given notice in accordance with Section 7.10; |
(Note 4)
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By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution
of the board of directors having been duly adopted and
submitted to the shareholders.
A consent in writing has been signed by all the shareholders entitled
to vote on this
amendment. |
(Note 4)
(INSERT AMENDMENT}
(Any
article being amended is required to be set forth in its entirely.)
(Suggested language for an amendment to change the corporate name is RESOLVED, that the Articles of Incorporation be
amended to read as follows:)
(NEW NAME)
All
changes other than name, Include on page 2
(over)
Resolution
RESOLVED:
That the
authorized shares the corporation be allowed to issue be increased from
10,000 shares to 500,000.
3. |
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The manner in which any exchange, reclassification or cancelation of issued shares,
of a reduction of the number of authorized shares of any
class below the number of Issued shares of that class, provided for or effected by this
amendment, is as follows: (If not applicable, insert No change) |
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N/A |
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4. |
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(a) The manner in which said amendment effects a change in the amount of
paid-in capital (Paid-in capital replaces the terms Stated Capital
and Paid-in Surplus and is equal to the total of these accounts) is as follows: (If not
applicable, insert No change) |
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N/A |
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(b) The amount of paid-in capital (Paid-in Capital replaces tho terms Stated Capital
and Paid-in Surplus and is equal to the total of these accounts) of changed by this
amendment is as follows: (If not applicable, Insert No change) |
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N/A |
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Before Amendment |
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After Amendment |
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Paid-In Capital |
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$ |
1000 |
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$ |
1000 |
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(Complete either Item 5 or 6 below)
5. |
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The undersigned corporation has caused this statement to be signed by its duly authorized
officers, each of whom affirms,
under penalties of perjury, that the facts stated herein are true. |
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Dated
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December 16, 1993
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ILLINOIS VALLEY RECYCLING, INC. |
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(Exact Name of Corporation) |
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attested by
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/s/ H. Paul Degroot |
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by |
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/s/ Paul Hettinga |
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(Signature of Secretary of Assistant Secretary)
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(Signature of president of vice President)
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H. Paul Degroot-secretary
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Paul Hettinga-President |
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(Type or Print Name and Title)
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(Type or Print Name and Title) |
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6. |
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If amendment is authorized by the incorporators, the incorporators must sign below. |
OR
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If amendment is authorized by the directors and there are no officers, then a majority of the
directors or such directors as may be designated by the board, must sign below. |
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The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true. |
Dated
,19
5. |
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The address of the registered office and the address of the business office of the
registered agent, as changed,
will be identical. |
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6. |
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The above change was authorized by: (X one box only) |
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a. |
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þ By resolution duly adopted by the board of directors. (Note 5) |
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b. |
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o By action of the registered agent. (Note 6) |
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NOTE: When the registered agent changes, the signatures of both president and secretary are
required. |
7. |
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(If authorized by the board of directors, sign here. See Note 5) |
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The undersigned corporation has caused this statement to be signed by its duly authorized
officers, each of whom affirms, under penalties of perjury, that the facts stated herein are true. |
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Dated
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December 16 |
, |
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2002 |
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Illinois Valley Recycling, Inc. |
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(Month & Day)
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(Year)
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(Exact Name of Corporation) |
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attested by
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/s/ Jo Lynn White |
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by |
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/s/ Donald W. Slager |
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(Signature of Secretary or Assistant Secretary)
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(Signature of President or Vice President) |
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Jo Lynn White, Secretary |
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Donald W. Slager, Executive Vice President
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(Type or Print Name and Title) |
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(Type or Print Name and Title)
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(If change of registered office by registered agent, sign here. See Note 6)
The undersigned, under penalties of perjury, affirms that the facts stated herein are true.
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Dated |
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, |
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(Month & Day)
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(Year)
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Signature of Registered Agent of Record) |
NOTES
1. |
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The registered office may, but need not be the same as the principal office of the
corporation. However, the
registered office and the office address of the registered agent must be the same. |
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2. |
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The registered office must include a street or road address; a post office box number alone is
not acceptable. |
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3. |
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A corporation cannot act as its own registered agent. |
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4. |
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If the registered office is changed from one county to another, then the corporation must
file with the recorder
of deeds of the new county a certified copy of the articles of incorporation and a certified
copy of the statement
of change of registered office. Such certified copies may be obtained ONLY from the Secretary
of State. |
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5. |
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Any change of registered agent must be by resolution adopted by the board of directors. This
statement must
then be signed by the president (or vice-president) and by the secretary for an assistant
secretary). |
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6. |
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The registered agent may report a change of the registered office of the corporation for
which he or she is
registered agent. When the agent reports such a change, this statement must be signed by the
registered
agent. |
exv3w564
Exhibit 3.564
AMENDED AND RESTATED BYLAWS
OF
ILLINOIS VALLEY RECYCLING, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting
2
during the whole time thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any
4
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
5
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier
6
resignation or removal. Any vacancy occurring in any office of the Corporation shall be filled by
the Board of Directors. The salaries and any bonuses or other compensation of all officers of the
Corporation shall be fixed by the Board of Directors. No officer shall be prevented from receiving
a salary by reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall
7
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
8
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it
9
may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
10
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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Section 5. Gender. All words used in any gender in these Bylaws shall
extend to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
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Section 3. Authorization of Indemnification. Any indemnification under
this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific
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case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be
a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
14
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
15
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w565
Exhibit 3.565
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ENDORSED FILED
in the office of the Secretary of State
of the State of California |
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OCT 1 1999 |
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BILL JONES, Secretary of State |
ARTICLES OF INCORPORATION
OF
IMPERIAL LANDFILL, INC.
* * * * *
FIRST: The name of the corporation is Imperial Landfill, Inc.
SECOND: The purpose of this corporation is to engage in any lawful act activity for which
a corporation may be organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporation Code.
THIRD: The name of this corporations initial agent for service of process
on the State of California is:
C T CORPORATION SYSTEM
FOURTH: This corporation is authorized to issue only one class of shares of stock; and
the total number of shares which this corporation is authorized to issue is One Thousand
(1,000).
FIFTH: The personal liability of a director for monetary damages in an action
brought by or in the right of the corporation for breach shall be eliminated to the fullest
extent permissible under California law.
SIXTH: The corporation is authorized to indemnify the directors and officers
of the corporation to the fullest extent permissible under California law. The corporation is
authorized to provide indemnification of agents (as defined in Section 317) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested directors or otherwise,
in excess of that expressly permitted by Section 317 for those agents of the corporation for breach
of duty to the corporation and its stockholders, subject to limitations set forth in Section 204.
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IN WITNESS WHEREOF, the undersigned have executed these Articles this 29th
day of September, 1999. |
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/s/ Donald W. Slager
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Donald W. Slager |
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Incorporator |
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exv3w566
Exhibit 3.566
BYLAWS
OF
IMPERIAL LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
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Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w567
Exhibit 3.567
ENDORSED
FILED
in the office of the Secretary of State
of the State of California
AUG 16 1971
EDMUND G. BROWN Jr., Secretary of State
By C. OSCAR JOHNSON
Deputy
ARTICLES OF INCORPORATION
OF
INDEPENDENT TRUCKING
For the purposes of forming this Corporation under the laws of the State of California, the
undersigned incorporators hereby state:
ARTICLE FIRST
Name
The name of the Corporation is:
INDEPENDENT TRUCKING
ARTICLE SECOND
Purposes
The Corporations purposes are:
(a) Primarily to engage in the specific business of operating an industrial refuse service and
waste paper hauling service;
(b) To engage in any business related or unrelated
to that described in clause (a) of this Article Second and from time to time authorized or approved
by the Board of Directors of this Corporation;
(c) To act as a partner or joint venturer or in any other legal capacity in any transaction;
(d) To do business anywhere in the world; and
(e) To have and exercise all rights and powers from
time to time granted to a corporation by law.
1.
The above purpose clauses shall not be limited by reference to or inference from one another,
but each purpose clause shall be construed as a separate statement conferring independent purposes
and powers upon the Corporation.
ARTICLE THIRD
Location
The county in the State of California where the principal office for the transaction of the
business of the Corporation is located is the County of San Joaquin.
ARTICLE FOURTH
Directors
(a) The number of Directors of the Corporation is three (3) until changed by amendment of
these Articles of Incorporation or by a By-Law duly adopted by the shareholders of the Corporation.
(b) The names and addresses of the persons who are appointed to act as first Directors are:
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1. Lawrence A. Aufmuth
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525 University Avenue Palo Alto, California |
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2. Patrick J. McGaraghan
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525 University Avenue Palo Alto, California |
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3. Paul E. Kreutz
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525 University Avenue Palo Alto, California |
2.
ARTICLE FIFTH
COMPLEX STOCK STRUCTURE
The Corporation is authorized to issue two classes of shares to be designated respectively
preferred and common. The total number of shares which the corporation is authorized to issue
is seven thousand five hundred (7,500) shares. The aggregate par value of all shares that are to
have a par value is SEVENTY-FIVE THOUSAND DOLLARS ($75,000.000). The number of preferred shares
authorized is five thousand (5,000) shares, and the par value of each such share is TEN DOLLARS
($10.00). The number of common shares authorized is two thousand five hundred (2,500) shares, and
the par value of each such share is TEN DOLLARS ($10.00).
The preferred shares authorized by these Articles of Incorporation may be issued from time to
time in one or more series. The Board of Directors is hereby authorized to fix or alter the
dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption,
including sinking fund provisions, the redemption price or prices, and the liquidation preferences
of any wholly unissued class or series of preferred shares, and the number of shares constituting
any such series and the designation thereof, or any of them.
The Board of Directors is further authorized to increase or decrease the number of shares of
any series, the number of which was fixed by it, subsequent to the issue of
3.
shares of that series, but not below the number of shares of such series then outstanding, subject
to the limitations and restrictions stated in the resolution of the Board of Directors originally
fixing the number of shares of such series. In case the number of shares of any series shall be
so decreased, the shares constituting such decrease shall resume the status which they had prior to
the adoption of the resolution originally fixing the number of shares of such series.
IN WITNESS WHEREOF, the undersigned incorporators, who are also the first Directors of this
Corporation, have executed these Articles of Incorporation on August 13, 1971.
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/s/ Lawrence A. Aufmuth
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Lawrence A. Aufmuth |
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/s/ Patrick J. McGaraghan
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Patrick J. McGaraghan |
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/s/ Paul E. Kreutz
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Paul E. Kreutz |
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4.
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STATE OF CALIFORNIA
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) ss. |
CITY AND COUNTY OF SANTA CLARA
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On this 13th day of August, 1971, before me, Judith A. Gaffke, a Notary Public in and for the
said County and State, residing therein, duly commissioned and sworn, personally appeared Lawrence
A. Aufmuth, Patrick J. McGaraghan and Paul E. Kreutz, known to me to be the persons whose names are
subscribed to the within instrument, and acknowledged to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certificate first above written.
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/s/ Judith A. Gaffke |
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Notary Public |
5.
ENDORSED
FILED
in the office of the Secretary of State
of the State of California
OCT 6 1971
EDMUND G. BROWN Jr., Secretary of State
By F. COLBY VOGEL
Deputy
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
Lawrence A. Aufmuth and Patrick J. McGaraghan certify:
1. That they constitute at least two-thirds of the incorporators of Independent Trucking, a
California corporation.
2. That they hereby adopt the following amendment of the Articles of Incorporation of said
corporation:
Article First is hereby amended to read as follows:
The name of the corporation is Independent Trucking Company.
3. That no shares have been issued and that there are no shares or subscriptions outstanding.
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/s/ Lawrence A. Aufmuth
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Lawrence A. Aufmuth, Incorporator |
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/s/ Patrick J. McGaraghan
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Patrick J. McGaraghan, |
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Incorporator |
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Each of the undersigned declares under penalty of perjury that the matters set forth in the
foregoing certificate are true and correct.
Executed at Palo Alto, California, on October 1, 1971.
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/s/ Lawrence A. Aufmuth
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Lawrence A. Aufmuth |
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/s/ Patrick J. McGaraghan
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Patrick J. McGaraghan |
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exv3w568
Exhibit 3.568
BY-LAWS
OF
INDEPENDENT TRUCKING COMPANY
ARTICLE I
OFFICES
Section 1.1 Principal Executive Office.
The principal executive office for the transaction of the business of the corporation is
hereby fixed and located at 401 South Lincoln Street, City of Stockton, County of San Joaquin,
State of California. The Board of Directors is hereby granted full power and authority to change
said principal office from one location to another.
Section 1.2 Other Offices.
Branch or subordinate offices may at any time be established by the Board of Directors at any
place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 2.1 Place of Meetings.
All meetings of shareholders shall be held either at the principal executive office or at any
other place within or without the State of California which may be designated either by the Board
of Directors or by the written consent of a majority of the shareholders entitled to vote thereat
as determined pursuant to Section 6.1 of these By-Laws given either before or after the meeting.
Section 2.2 Annual Meetings.
The annual meetings of shareholders shall be held on such day and at such hour as may be fixed
by the Board of Directors. At such meeting, Directors shall be elected, and any other proper
business may be transacted.
Section 2.3 Special Meetings.
Special meetings of the shareholders may be called at any time by the Board of Directors, the
Chairman of the Board, the President, or by the holders of shares entitled to
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cast not less than ten percent (10%) of the votes at the meeting. Notice of such special meeting
shall be given in the same manner as for the annual meeting of shareholders. Notices of any special
meetings shall specify in addition to the place, date and hour of such meeting, the general nature
of the business to be transacted thereat.
Section 2.4 Notice of Meetings or Reports.
Written notice of each meeting of shareholders shall be given not less than ten (10) days nor
more than sixty (60) days before the date of the meeting to each shareholder entitled to vote
thereat. Such notice shall be given either personally or by mail or other means of written
communication, addressed or delivered to each shareholder entitled to vote at such meeting at the
address of such shareholder appearing on the books of the corporation or given by him to the
corporation for the purpose of such notice. If no such address appears or is given, notice shall
be given either personally or by mail or other means of written communication addressed to the
shareholder at the place where the principal executive office of the corporation is located, or by
publication at least once in a newspaper of general circulation in the county in which said office
is located. The notice shall be deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication.
The same procedure for the giving of notice shall apply to the giving of any report to
shareholders.
All such notices shall state the place, the date and the hour of such meeting, and shall state
such matters, if any, as may be expressly required by the California Corporations Code.
Upon request by any person or persons entitled to call a special meeting, the Chairman of the
Board, President, Vice President or Secretary shall within twenty (20) days after receipt of the
request cause notice to be given to the shareholders entitled to vote that a special meeting will
be held at a time requested by the person or persons calling the meeting, but not less than
thirty-five (35) nor more than sixty (60) days after receipt of the request.
All other notices shall be sent by the Secretary or an Assistant Secretary, or if there be no
such officer, or in the case of his neglect or refusal to act, by any other officer, or by persons
calling the meeting.
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Section 2.5 Adjourned Meetings and Notice Thereof.
Any shareholders meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares, represented either in person
or by proxy, but in the absence of a quorum, no other business may be transacted at such meeting,
except as provided in Section 2.7 of these By-Laws.
When a shareholders meeting is adjourned to another time or place, notice of the adjourned
meeting need not be given if the time and place thereof are announced at the meeting at which the
adjournment is taken; except that if the adjournment is for more than forty-five (45) days or if
after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each shareholder of record entitled to vote thereat.
At the adjourned meeting, the corporation may transact any business which might have been
transacted at the original meeting.
Section 2.6 Voting.
Except as otherwise provided in the Articles of Incorporation and subject to Section 6.1 of
these By-Laws, each outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote of shareholders. Vote may be viva voce or by ballot; provided, however,
that elections for directors must be by ballot upon demand made by a shareholder at the meeting and
before the voting begins.
Every shareholder entitled to vote at any election for Directors may cumulate his votes and
give one candidate a number of votes equal to the number of directors to be elected, multiplied by
the number of votes to which his shares are entitled, or to distribute his votes on the same
principle among as many candidates as he thinks fit, provided that no shareholder shall be entitled
to cumulate votes unless such candidate or candidates names have been placed in nomination prior to
the voting and the shareholder has given notice at the meeting, prior to the voting, of the
shareholders intention to cumulate the shareholders votes. If any one shareholder has given such
notice, all shareholders may cumulate their votes for candidates in nomination. The candidates
receiving the highest number of votes of the shares entitled to be voted for them, up to the number
of directors to be elected by such shares, shall be elected.
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Any holder of shares entitled to vote on any matter may vote part of the shares in favor of
the proposal and refrain from voting the remaining shares or vote them against the proposal, other
than elections to office, but, if the shareholder fails to specify the number of shares such
shareholder is voting affirmatively, it shall be conclusively presumed that the shareholders
approving vote is with respect to all shares said shareholder is entitled to vote.
Section 2.7 Quorum.
A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of shareholders. If a
quorum is present, the affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on any matter shall be the act of the shareholders, unless otherwise required by
the Articles of Incorporation.
The shareholders present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is approved by at least a
majority of the shares required to constitute a quorum.
Section 2.8 Consent of Absentees.
The transactions of any meeting of shareholders, if not duly called and noticed, and wherever
held, shall be as valid as though had at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy, and if, either before or after the meeting, each of
the shareholders entitled to vote, not present in person or by proxy, signs a written waiver of
notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All
such waivers, consents, or approvals shall be filed with the corporate records or made a part of
the minutes of the meeting.
Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when a person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or
convened; provided, that attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by law or these By-Laws to be included in the notice but not so
included if such objection is expressly made at the meeting.
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Section 2.9 Action Without Meeting.
Any action which may be taken at any meeting of shareholders may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the actions so taken, shall be
signed by the holders of outstanding shares having not less than the minimum number of votes which
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted; provided, that except to fill a vacancy as provided in Section
3.6 of these By-Laws, Directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of Directors.
Unless the consents of all shareholders entitled to vote have been solicited in writing,
notice of the following actions approved by shareholders without a meeting by less than unanimous
written consent shall be given to those shareholders entitled to vote who have not consented in
writing at least ten (10) days before the consummation of the action authorized by such approval:
1. Approval of a contract or other
transaction between the corporation and one or more of its Directors, or between the corporation
and any corporation, firm or association in which one or more of its Directors has a material
financial interest.
2. Approval of any indemnification to be
made by the corporation of a person who was or is a party or is threatened to be made a party to
any proceeding by reason of the fact that such person was or is an agent of the corporation.
3. Approval of the principal terms of a reorganization.
4. Approval of a plan of distribution of the shares, obligations or securities of any other
corporation, or assets other than money, which is not in accordance with the liquidation rights of
the preferred shares as specified in the Articles of Incorporation or a Certificate of
Determination.
Unless the consents of all shareholders entitled to vote have been solicited in writing,
prompt notice of the taking of any corporate action not listed above which is approved by
shareholders without a meeting by less than unanimous written consent, shall be given to those
shareholders entitled to vote who have not consented in writing.
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Such notice shall be given as provided in Section 2.4 of these By-Laws.
Section 2.10 Proxies.
Every person entitled to vote shares may authorize another person or persons to act by proxy
with respect to such shares. No proxy shall be valid after the expiration of eleven (11) months
from the date thereof unless otherwise provided in the proxy.
ARTICLE III
DIRECTORS
Section 3.1 Powers.
Subject to the limitations stated in the Articles of Incorporation, these By-Laws, and the
California Corporations Code as to actions which shall be approved by the shareholders or by the
affirmative vote of a majority of the outstanding shares entitled to vote, and subject to the
duties of Directors as prescribed by the California Corporations Code, all corporate powers shall
be exercised by, or under the direction of, and the business and affairs of the corporation shall
be managed by, the Board of Directors.
Section 3.2 Number of Directors.
The authorized number of Directors of the
corporation shall be three (3) until changed by a By-Law duly adopted by the affirmative vote of a
majority of the outstanding shares entitled to vote amending this Section 3.2.
Section 3.3 Election and Term of Office.
The Directors shall be elected at each annual meeting of shareholders, but if any such annual
meeting is not held, or the Directors are not elected thereat, the Directors may be elected at any
special meeting of the shareholders held for that purpose. All Directors shall hold office until
the expiration of the term for which elected and until their respective successors are elected,
except in the case of the death, resignation or removal of any Director. A Director need not be a
shareholder.
Section 3.4 Resignation.
Any Director may resign effective upon giving written notice to the Chairman of the Board, the
President,
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the Secretary or the Board of Directors of the corporation, unless the notice specifies a later
time for the effectiveness of such resignation. If the resignation is effective at a future time,
a successor may be elected to take office when the resignation becomes effective.
Section 3.5 Removal.
The entire Board of Directors or any individual Director may be removed from office, prior to
the expiration of their or his term of office only in the manner and within the limitations
provided by the California Corporations Code.
No reduction of the authorized number of Directors shall have the effect of removing any
Director prior to the expiration of such Directors term of office.
Section 3.6 Vacancies.
A vacancy in the Board of Directors shall be deemed to exist in case of the death, resignation
or removal of any Director, or if the authorized number of Directors be increased, or if the
shareholders fail at any annual or special meeting of shareholders at which any Director or
Directors are elected to elect the full authorized number of Directors to be voted for at that
meeting.
Vacancies in the Board of Directors may be filled by a majority of the Directors then in
office, whether or not less than a quorum, or by a sole remaining Director. Each Director so
elected shall hold office until the expiration of the term for which he was elected and until his
successor is elected at an annual or a special meeting of the shareholders, or until his death,
resignation or removal.
The shareholders may elect a Director or Directors at any time to fill any vacancy or
vacancies not filled by the Directors. Any such election by written consent other than to fill a
vacancy created by removal requires the consent of a majority of the outstanding shares entitled to
vote. A Director may not be elected by written consent to fill a vacancy created by removal except
by unanimous written consent of all shares entitled to vote for the election of directors.
Section 3.7 Organization Meeting.
Immediately after each annual meeting of
shareholders, the Board of Directors shall hold a regular meeting for the purpose of organization,
the election of officers and the transaction of other business. No notice of such meeting need be
given.
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Section 3.8 Other Regular Meetings.
The Board of Directors may provide by resolution the time and place for the holding of regular
meetings of the Board; provided, however, that if the date so designated falls upon a legal
holiday, then the meeting shall be held at the same time and place on the next succeeding day which
is not a legal holiday. No notice of such regular meetings of the Board need be given.
Section 3.9 Calling Meetings.
Meetings of the Board of Directors for any purpose or purposes shall be held whenever called
by the Chairman of the Board, the President or the Secretary or any two Directors of the
corporation.
Section 3.10 Place of Meetings.
Meetings of the Board of Directors shall be held at any place within or without the State of
California which may be designated in the notice of the meeting, or, if not stated in the notice or
there is no notice, designated by resolution of the Board. In the absence of such designation,
meetings of the Board of Directors shall be held at the principal executive office of the
corporation.
Section 3.11 Telephonic Meetings.
Members of the Board may participate in a regular or special meeting through use of conference
telephone or similar communications equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting pursuant to this Section 3.11 constitutes presence
in person at such meeting.
Section 3.12 Notice of Special Meetings.
Written notice of the time and place of special meetings of the Board of Directors shall be
delivered personally to each Director, or sent to each Director by mail, telephone or telegraph.
In case such notice is sent by mail, it shall be deposited in the United States mail at least four
(4) days prior to the time of the holding of the meeting. In case such notice is delivered
personally, or by telephone or telegraph, it shall be so delivered at least forty-eight (48) hours
prior to the time of the holding of the meeting. Such notice may be given by the Secretary of the
corporation or by the persons who called said meeting. Such notice need not specify the purpose of
the meeting, and
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notice shall not be necessary if appropriate waivers, consents and/or approvals are
filed in accordance with Section 3.13 of these By-Laws.
Section 3.13 Waiver of Notice.
Notice of a meeting need not be given to any Director who signs a waiver of notice, whether
before or after the meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
The transactions of any meeting of the Board of Directors, however called and noticed or
wherever held, shall be as valid as though had at a meeting duly held after regular call and notice
if a quorum is present and if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice, a consent to holding the meeting or an approval of the
minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records
or made a part of the minutes of the meeting.
Section 3.14 Action Without Meeting.
Any action required or permitted to be taken by the Board of Directors may be taken without a
meeting, if all members of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a unanimous vote of
such Directors.
Section 3.15 Quorum.
A majority of the authorized number of Directors shall constitute a quorum for the transaction
of business. Every act or decision done or made by a majority of the Directors present at a meeting
duly held at which a quorum is present shall be the act of the Board of Directors, unless the
Articles of Incorporation, or the California Corporations Code, specifically requires a greater
number. In the absence of a quorum at any meeting of the Board of Directors, a majority of the
Directors present may adjourn the meeting as provided in Section 3.16 of these By-Laws. A meeting
at which a quorum is initially present may continue to transact business, notwithstanding the
withdrawal of enough Directors to leave less than a quorum, if any action taken is approved by at
least a majority of the required quorum for such meeting.
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Section 3.16 Adjournment.
Any meeting of the Board of Directors, whether or not a quorum is present, may be adjourned to
another time and place by the vote of a majority of the Directors present. Notice of the time and
place of the adjourned meeting need not be given to absent Directors if said time and place are
fixed at the meeting adjourned.
Section 3.17 Inspection Rights.
Every Director shall have the absolute right at any time to inspect, copy and make extra
copies of, in person or by agent or attorney, all books, records and documents of every kind and to
inspect the physical properties of the corporation.
Section 3.18 Fees and Compensation.
Directors shall not receive any stated salary for their services as directors, but, by
resolution of the Board, a fixed fee, with or without expenses of attendance, may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to preclude any Director
from serving the corporation in any other capacity as an officer, agent, employee, or otherwise,
and receiving compensation therefor.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 4.1 Executive Committee.
The Board of Directors may, by resolution adopted by a majority of the authorized number of
Directors, appoint an executive committee, consisting of two or more Directors. The Board may
designate one or more Directors as an alternate member of such committee, who may replace any
absent member of any meeting of the committee. The executive committee, subject to any limitations
imposed by the California Corporations Code, or by resolution adopted by the affirmative vote of a
majority of the authorized number of Directors, or imposed by the Articles of Incorporation or by
these By-Laws, shall have and may exercise all of the powers of the Board of Directors.
Section 4.2 Other Committees.
The Board of Directors may, by resolution adopted by a majority of the authorized number of
Directors, designate such other committees, each consisting of 2 or more
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Directors, as it may from time to time deem advisable to perform such general or special duties as
may from time to time be delegated to any such committee by the Board of Directors, subject to the
limitations contained in the California Corporations Code, or imposed by the Articles of
Incorporation or by these By-Laws. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent member at any meeting of the committee.
Section 4.3 Minutes and Reports.
Each committee shall keep regular minutes of its proceedings, which shall be filed with the
Secretary. All action by any committee shall be reported to the Board of Directors at the next
meeting thereof, and, insofar as rights of third parties shall not be affected thereby, shall be
subject to revision and alteration by the Board of Directors.
Section 4.4 Meetings.
Except as otherwise provided in these By-Laws or by resolution of the Board of Directors, each
committee shall adopt its own rules governing the time and place of holding and the method of
calling its meetings and the conduct of its proceedings and shall meet as provided by such rules,
and it shall also meet at the call of any member of the committee. Unless otherwise provided by
such rules or by resolution of the Board of Directors, committee meetings shall be governed by
Sections 3.11, 3.12 and 3.13 of these By-Laws.
Section 4.5 Term of Office of Committee Members.
The term of office of any committee member shall be as provided in the resolution of the Board
of Directors designating him but shall not exceed his term as a Director. Any member of a committee
may be removed at any time by resolution adopted by Directors holding a majority of the
directorships, either present at a meeting of the Board or by written approval thereof.
ARTICLE V
OFFICERS
Section 5.1 Officers.
The officers of the corporation shall be a President, a Vice President, a Secretary, and a
Treasurer, who shall be the Chief Financial Officer of the corporation. The corporation may also
have, at the discretion of the Board
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of Directors, a Chairman of the Board, one or more additional Vice Presidents, one or more
Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions
of Section 5.3. One person may hold two or more offices.
Section 5.2 Election.
The officers of the corporation, except such officers as may be appointed in accordance with
the provisions of Sections 5.3 and 5.5, shall be chosen annually by the Board of Directors and each
shall hold his office until he shall resign or shall be removed or otherwise disqualified to serve,
or his successor shall be elected and qualified.
Section 5.3 Subordinate Officers, etc.
The Board of Directors may appoint such other officers as the business of the corporation may
require, each of whom shall hold office for such period, have such authority and perform such
duties as are provided in these By-Laws or as the Board of Directors may from time to time
determine.
Section 5.4 Removal and Resignation.
Any officer may be removed, either with or without cause, by a majority of the Directors at
the time in office, at any regular or special meeting of the Board, or, except in case of an
officer chosen by the Board of Directors, by an officer upon whom such power of removal may be
conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the corporation. Any such
resignation shall take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 5.5 Vacancies.
A vacancy in any office because of death, resignation, removal, disqualification or any other
cause shall be filled in the manner prescribed in these By-Laws for regular appointments to such
office.
Section 5.6 Chairman of the Board.
The Chairman of the Board, if there shall be such an officer, shall, if present, preside at
all meetings of the
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Board of Directors, and exercise and perform such other powers and duties as may be from time to
time assigned to him by the Board of Directors or prescribed by these By-Laws.
Section 5.7 President.
Subject to such supervisory powers, if any, as may be given by the Board of Directors to the
Chairman of the Board, if there be such an officer, the President shall be the general manager and
chief executive officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction, and control of the business and officers of the
corporation. He shall preside at all meetings of the shareholders. He shall be ex officio a
member of all the standing committees, including the executive committee, if any, and shall have
the general powers and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by the Board of
Directors or by these By-Laws.
Section 5.8 Vice President.
In the absence or disability of the President, the Vice Presidents in order of their rank as
fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform the duties of the President, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such
other powers and perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors or these By-Laws.
Section 5.9 Secretary.
The Secretary shall keep, or cause to be kept, a book of minutes in written form of the
proceedings of the Board of Directors, committees of the Board, and shareholders. Such minutes
shall include all waivers of notice, consents to the holding of meetings, or approvals of the
minutes of meetings executed pursuant to these By-Laws or the California Corporations Code. The
Secretary shall keep, or cause to be kept at the principal executive office or at the office of the
corporations transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of shares held by each.
The Secretary shall give or cause to be given, notice of all meetings of the shareholders and
of the Board of Directors required by these By-Laws or by law to be given, and shall keep the seal
of the corporation in safe custody.
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and shall have such other powers and perform such other duties as may be prescribed by the
Board of Directors or these By-Laws.
Section 5.10 Treasurer and Chief Financial Officer.
The Treasurer and Chief Financial Officer shall keep and maintain, or cause to be kept and
maintained, adequate and correct books and records of account in written form or any other form
capable of being converted into written form.
The Treasurer and Chief Financial Officer shall deposit all monies and other valuables in the
name and to the credit of the corporation with such depositaries as may be designated by the Board
of Directors. He shall disburse all funds of the corporation as may be ordered by the Board of
Directors, shall render to the President and Directors, whenever they request it, an account of all
of his transactions as Treasurer and Chief Financial Officer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as may be prescribed by
the Board of Directors or by these By-Laws.
Section 5.11 Assistant Secretary.
The Assistant Secretary shall have all the powers, and perform all the duties of, the
Secretary in the absence or inability of the Secretary to act.
Section 5.12 Compensation.
The compensation of the officers shall be fixed from time to time by the Board of Directors,
and no officer shall be prevented from receiving such compensation by reason of the fact that he is
also a Director of the corporation.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Record Date.
The Board of Directors may fix, in advance, a time in the future as the record date for the
determination of shareholders entitled to notice of any meeting or to vote or entitled to receive
payment of any dividend or other distribution or allotment of any rights or entitled to exercise
any rights in respect of any other lawful action. Shareholders on the record date are entitled to
notice and to vote or receive the dividend, distribution or allotment of
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rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares in
the books of the corporation after the record date, except as otherwise provided by law. Said
record date shall not be more than sixty (60) or less than ten (10) days prior to the date of such
meeting, nor more than sixty (60) days prior to any other action.
A determination of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting unless the Board fixes a new record date
for the adjourned meeting, but the Board shall fix a new record date if the meeting is adjourned
for more than forty-five (45) days from the date set for the original meeting.
If no record date is fixed by the Board of Directors, the record date shall be fixed
pursuant to the California Corporations Code.
Section 6.2 Inspection of Corporate Records.
The accounting books and records, and minutes of proceedings of the shareholders and the Board
of Directors and committees of the Board shall be open to inspection upon written demand made upon
the corporation by any shareholder or the holder of a voting trust certificate, at any reasonable
time during usual business hours, for a purpose reasonably related to his interest as a
shareholder, or as the holder of such voting trust certificate. The record of shareholders shall
also be open to inspection by any shareholder or holder of a voting trust certificate at any time
during usual business hours upon written demand on the corporation, for a purpose reasonably
related to such holders interest as a shareholder or holder of a voting trust certificate. Such
inspection may be made in person or by an agent or attorney, and shall include the right to copy
and to make extracts.
Section 6.3 Execution of Corporate Instruments.
The Board of Directors may, in its discretion, determine the method and designate the
statutory officer or officers, or other person or persons, to execute any corporate instrument or
document, or to sign the corporate name without limitation, except where otherwise provided by law,
and such execution or signature shall be binding upon the corporation. Unless otherwise
specifically determined by the Board of Directors, formal contracts of the corporation, promissory
notes, mortgages, evidences of indebtedness, conveyances or other instruments in writing, and any
assignment or endorsement thereof, executed or entered into
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between the corporation and any person, may be signed by the Chairman of the Board, the President,
any Vice President, the Secretary or the Treasurer of the corporation.
Section 6.4 Ratification by Shareholders.
The Board of Directors may, subject to applicable notice requirements, in its discretion,
submit any contract or act for approval or ratification of the shareholders at any annual meeting
of shareholders, or at any special meeting of shareholders called for that purpose; and any
contract or act which shall be approved or ratified by the affirmative vote of a majority of the
shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the
written consent of shareholders, shall be as valid and binding upon the corporation and upon the
shareholders thereof as though approved or ratified by each and every shareholder of the
corporation, unless a greater vote is required by law for such purpose.
Section 6.5 Annual Report.
For so long as the corporation has less than 100 holders of record of its shares, the
mandatory requirement of an annual report is hereby expressly waived. The Board of Directors may,
in its discretion, cause an annual report to be sent to the shareholders. Such reports shall
contain at least a balance sheet as of the close of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year, and shall be accompanied by any
report thereon of independent accountants, or if there is no such report, the certificate of an
authorized officer of the corporation that such statements were prepared without audit in the books
and records of the corporation.
A shareholder or shareholders holding at least five percent (5%) of the outstanding shares of
any class of the corporation may make a written request to the corporation for an income statement
and/or a balance sheet of the corporation for the three-month, six-month or nine-month period of
the current fiscal year ended more than thirty (30) days prior to the date of the request, and such
statement shall be delivered or mailed to the person making the request within thirty (30) days
thereafter. Such statements shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificates of an authorized officer of the
corporation that such financial statements were prepared without audit from the books and records
of the corporation.
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Section 6.6 Representation of Shares of
Other Corporations.
The President and Vice President of this
corporation are authorized to vote, represent and exercise on behalf of the corporation all rights
incident to any and all shares of any other corporation or corporations standing in the name of
this corporation. The authority herein granted to said officers to vote or represent on behalf of
this corporation any and all shares held by this corporation and any other corporation or
corporations may be exercised either by such officers in person or by any person authorized so to
do by proxy or power of attorney and duly executed by said officers.
Section 6.7 Inspection of By-Laws.
The corporation shall keep in its principal
executive office in this State the original or a copy of the By-Laws as amended or otherwise
altered to date, which shall be open to inspection by the shareholders at all reasonable times
during office hours.
ARTICLE VII
SHARES OF STOCK
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Section 7.1 Form of Certificates. |
Certificates for shares of stock of the
corporation shall be in such form and design as the Board of Directors shall determine and shall be
signed in the name of the corporation by the Chairman of the Board, or the President or Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or any Assistant
Secretary. Each certificate shall state the certificate number, the date of issuance, the number,
class or series and the name of the record holder of the shares represented thereby, the name of
the corporation, and, if the shares of the corporation are classified or if any class of shares has
two or more series, there shall appear the statement required by the California Corporations Code.
Section 7.2 Transfer of Shares.
Shares of stock may be transferred in any manner permitted or provided by law. Before any
transfer of stock is entered upon the books of the corporation, or any new certificate issued
therefor, the older certificate, properly endorsed, shall be surrendered and cancelled, except when
a certificate has been lost, stolen or destroyed.
17.
Section 7.3 Lost Certificates.
The Board of Directors may order a new certificate for shares of stock to be issued in the
place of any certificate alleged to have been lost, stolen or destroyed, but in every such case,
the owner or the legal representative of the owner of the lost, stolen or destroyed certificates
may be required to give the corporation a bond (or other adequate security) in such form and amount
as the Board may deem sufficient to indemnify it against any claim that may be made against the
corporation (including any expense or liability) on account of the alleged loss, theft or
destruction of any such certificate or issuance of such new certificate.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.1 Indemnification by Corporation.
The Board may, in its discretion, indemnify any Director, officer, employee or other agent of
the corporation against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in a proceeding (including a derivative action on behalf of the corporation) to
which that person was or is threatened to be made a party by reason of the fact that he was or is
an agent of the corporation, but only to the extent allowed by the California Corporations Code and
subject to Director or shareholder approval as required by said code.
In no event shall anything herein contained be construed as authorizing the corporation to
indemnify any such Director or officer against any liability or expense by reason of willful
malfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of his office. The foregoing right of indemnification shall not be exclusive of other
rights as to which any Director or officer may be entitled by law.
Section 8.2 Advancing Expenses.
The corporation may advance to each Director or officer the expenses incurred in defending any
proceeding referred to in Section 8.1 of these By-Laws prior to the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of the Director or officer to repay such
amount unless it shall be determined ultimately
18.
that the Director or officer is entitled to be indemnified as authorized in Section 8.1 of these
By-Laws.
ARTICLE IX
AMENDMENTS
Section 9.1 Power of Shareholders.
New By-Laws may be adopted or these By-Laws may be amended or repealed by the
affirmative vote of a majority of the outstanding shares entitled to vote or by the written consent
thereof, except as otherwise provided by law or by the Articles of Incorporation.
Section 9.2 Power of Directors
Subject to the right of shareholders as provided in Section 9.1 of these By-Laws, By-Laws
other than a By-Law or amendment thereof specifying or changing the authorized number of Directors,
or the minimum or maximum number of a variable Board of Directors, or changing from a fixed to a
variable Board of Directors or vice versa, may be adopted, amended or repealed by the approval of
the Board of Directors.
19.
exv3w569
Exhibit 3.569
Form BCA-2.10
(Rev. Jan. 1995)
George H. Ryan
Secretary of State
Department of Business Services
Springfield, IL 62756
http://www.sos.state.il.us
Payment must be made by
certified check, cashiers
check, Illinois attorneys
check, Illinois C.P.As check
or money order, payable to
Secretary of State.
ARTICLES
OF INCORPORATION
This space for use by Secretary of State
FILED
SEP 11 1998
GEORGE H. RYAN
SECRETARY OF STATE
SUBMIT IN DUPLICATE!
This space for use by
Secretary of State
Date 9-11-98
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Franchise Tax |
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15000 |
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Filing Fee |
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7500 |
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Approved: |
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22500 |
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PAID
SEP 11 1998
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CORPORATE NAME: INGRUM WASTE DISPOSAL, INC. |
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(The corporate name must contain the word corporation, company, incorporated, limited
or an abbreviation thereof.) |
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2.
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Initial Registered Agent:
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Peter T. Dole |
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First Name
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Middle Initial
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Last name |
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Initial Registered Office:
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117 E. Washington |
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Number
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Street
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Suite # |
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Paris IL
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61944 |
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Edgar |
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City
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zip Code
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3. |
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Purpose or purposes for which the corporation is organized: |
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To own, operate and supervise all business related to waste disposal for residential
and commercial customers. |
4. |
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Paragraph 1: Authorized Shares, Issued Shares and Consideration Received: |
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Par Value |
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Number of Shares |
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Number of Shares |
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Consideration to be |
Class |
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per Share |
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Authorized |
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Proposed to be Issued |
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Received Therefor |
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A |
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$NPV |
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500,000 |
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100,000 |
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100,000.00 |
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TOTAL =
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100,000.00 |
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Paragraph 2: The preferences, qualifications, limitations, restrictions and special or
relative rights in respect of the shares
of each class are: |
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(If not sufficient space to cover this point, add one or more sheets of this size.) |
(over)
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5. OPTIONAL:
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(a)
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Number of directors constituting the initial board of directors of the
corporation: 02. |
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(b)
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Names and addresses of the persons who are to serve as
directors until the first annual meeting of shareholders or until their
successors are elected and qualify: |
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Name |
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Residential Address |
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City, State, ZIP |
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M. Scott Ingrum
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17 Poplar Dr.
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Paris, IL, 61944 |
Kathy Jo Ingrum
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17 Poplar Dr.
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Paris, IL. 61944 |
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6. OPTIONAL:
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(a)
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It is estimated that the value of all
property to be owned by the corporation
for the following year wherever located
will be:
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$
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(b)
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It is estimated that the value of the
property to be located within the State of
Illinois during the following year will
be:
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$
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(c)
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It is estimated that the gross amount of
business that will be transacted by the
corporation during the following year will
be:
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$
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(d)
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It is estimated that the gross amount of
business that will be transacted from
places of business in the State of
Illinois during the following year will
be:
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$
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7. OPTIONAL: |
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OTHER PROVISIONS
Attach a separate sheet of this size for any other provision to be
included in the Articles of Incorporation, e.g., authorizing preemptive
rights, denying cumulative voting, regulating internal affairs, voting
majority requirements, fixing a duration other than perpetual, etc. |
8. |
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NAME(S) & ADDRESS(ES) OF INCORPORATOR(S) |
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true.
Dated September 3,
1998.
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Signature and Name
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Address |
1.
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/s/ M. Scott Ingrum
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1. |
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17 Poplar Dr. |
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Signature
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Street |
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M. Scott Ingrum
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Paris, IL.
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61944 |
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2.
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/s/ Kathy Jo Ingrum
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2. |
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17 Poplar Dr. |
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Signature
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Kathy Jo Ingrum
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Paris, IL.
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61944 |
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3.
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3. |
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Signature
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Street |
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(Signatures
must be in BLACK INK on original document Carbon copy, photocopy or
rubber stamp signatures may only be used on conformed copies.)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by its president or vice president
and verified by him, and attested by its secretary or assistant secretary.
FEE SCHEDULE
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The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50
per $1,000) on the paid-in capital represented in this state, with a minimum of $25. |
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The filing fee is $75. |
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The minimum total due (franchise tax + filing fee) is $100. |
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(Applies when the Consideration to be Received as set forth in Item 4 does not exceed
$16,667) |
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The Department of Business Services in Springfield will provide assistance in
calculating the total fees if necessary. |
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Illinois Secretary of State
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Springfield, IL 62756 |
Department of Business Services
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Telephone (217) 782-9522 or 782-9523 |
exv3w570
Exhibit 3.570
AMENDED AND RESTATED BYLAWS
OF
INGRUM WASTE DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meetings the stockholders shall elect Directors in accordance with
Section 1 of Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten (10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected
by any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action bv Written Consent. Any action required or permitted to be taken by
the stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization
in which one or more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall possess and may exercise any and all
rights and powers incident to the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen
9
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall
10
be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise against expenses (including attorneys fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivitv of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaw,
agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office, it being the
policy of the Corporation that indemnification of the persons specified in Sections 1 and 2 of this
Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article
VIII shall not be deemed to preclude the indemnification of any person who is not specified in
Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the applicable state law of the state of incorporation, or
otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote
thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w571
Exhibit 3.571
Restriction of Right
to amend articles
Yes No
[ILLEGIBLE]
ARTICLES OF INCORPORATION
OF
INTERNATIONAL DISPOSALCORP. OF CALIFORNIA
ARTICLE I
The name of this corporation is INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA.
ARTICLE II
The specific business in which the corporation is primarily to engage is waste disposal
by means of sanitary landfill operations.
ARTICLE III
The purposes for which this corporation is formed are:
(a) To engage in any one or more other businesses or transactions which the Board of Directors
of this corporation may from time to time authorize or approve, whether related or unrelated to the
business described in Article II above, or to any other business then or theretofore done by this
corporation;
(b) To have and to exercise any and all powers and rights which a corporation by law may now
or hereafter exercise;
(c) To act as principal, agent, joint venturer, partner, or in any other capacity which may be
authorized or approved by the Board of Directors of this corporation; and
(d) To transact business in the State of California or in any other jurisdiction of the United
States of America or elsewhere in the world.
The foregoing statement of purposes shall be construed as a statement of objects,
purposes and powers, and the enumeration thereof shall not be held to limit or restrict in any
manner the powers now or hereinafter conferred upon the corporation by the laws of the State of
California. The objects, purposes and powers in each clause shall, except where otherwise
expressed, be in nowise limited or restricted by reference to or inference from the terms or
provisions of any other clause, but shall be regarded as independent objects, purposes and powers.
ARTICLE IV
The principal office for the transaction of the business of this corporation shall be
located in the County of Santa Clara, State of California.
ARTICLE V
The total number of shares which the corporation is authorized to issue is Forty-Five
Thousand (45,000). The par value of each of said shares shall be $100.00 and the aggregate par
value of all of said shares shall be $4,500,000.00. Said shares shall be designated Common Stock.
ARTICLE VI
The authorized number of directors of this corporation shall be three (3).
The names and addresses of the persons who are appointed as first directors are:
-2-
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Michael J. Cullen
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44 Montgomery Street |
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San Francisco, California 94104 |
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Charles H. Clifford
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44 Montgomery Street |
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San Francisco, California 94104 |
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Charles A. Greenberg
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44 Montgomery Street |
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San Francisco, California 94104 |
IN WITNESS WHEREOF, for the purposes of forming this
corporation under the laws of the State of California, the undersigned,
constituting the incorporators of this corporation, including the persons named above as the first directors of this
corporation, have executed these Articles this 15th day of
November, 1972.
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/s/ Michael J. Cullen
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Michael J. Cullen |
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/s/ Charles H. Clifford |
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Charles H. Clifford |
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/s/ Charles A. Greenberg |
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Charles A. Greenberg |
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-3-
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STATE OF CALIFORNIA
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) ss. |
CITY AND COUNTY OF SAN FRANCISCO
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) |
On this 15th day of November, 1972, before me, Josephine Hulsman, a Notary Public in and
for said City and County of San Francisco, residing therein, duly commissioned and sworn,
personally appeared MICHAEL J. CULLEN, CHARLES H. CLIFFORD and CHARLES A. GREENBERG, known to me to
be the persons whose names are subscribed to the within and foregoing instrument, and acknowledged
to me that they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
last above written.
(SEAL)
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/s/ Josephine Hulsman
NOTARY PUBLIC
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JOSEPHINE HULSMAN
[ILLEGIBLE]
FILED
In the office of the Secretary of State
of the State of California
JUN 14 1973
[ILLEGIBLE]
INTERNATIONAL
DISPOSAL CORP. OF CALIFORNIA
CERTIFICATE
OF OWNERSHIP
INTERNATIONAL
DISPOSAL CORP. OF CALIFORNIA, a California corporation, herein
referred to a Parent,
hereby certifies the following:
1. Parent
owns all the outstanding shares of the capital stock of NEWBY ISLAND
IMPROVEMENT CO., herein referred to as Subsidiary, said capital stock being the sole
class of stock of the Subsidiary.
2. On the 7th day of May, 1973, the Board of Directors of Parent adopted the following
resolutions by unanimous written consent as authorized by Section 20 of the By-laws of the
corporation:
WHEREAS,
it is deemed advisable that Newby Island Improvement Co., all of whose outstanding shares
are owned by this corporation, be merged with and into this
corporation, it is
RESOLVED, that this corporation merge Newby Island Improvement Co. into itself and assume all the
obligations of Newby Island Improvement Co.; and
FURTHER,
RESOLVED, that the President or Vice President and Secretary or
Assistant Secretary of this corporation are hereby authorized and
directed to execute, verify, and file a Certificate of Ownership and to take all necessary and
proper action to carry out said merger.
Dated:
May 7th, 1973.
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INTERNATIONAL DISPOSAL
CORP. OF CALIFORNIA |
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By
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/s/ Roger A. Ramsey |
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Roger A. Ramsey |
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Title President |
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By
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/s/ Howard S. Hoower |
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Howard S. Hoower |
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Title Secretary |
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VERIFICATION
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State of Texas
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County of Harris
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The
undersigned, being first duly sworn, depose and say, each for himself:
That
they are and at all times mentioned in the forgoing Certificate of Ownership were the
_______ President and _______ Secretary of INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA;
that each of the undersigned
has read the foregoing Certificate of Ownership; that statements therein are true of his own
knowledge; and that the signature thereto purporting to be his
signature is cenuine.
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/s/ Roger A. Ramsey
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Roger A. Ramsey |
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______________ President |
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of INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA |
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/s/ Howard S. Hoover, Jr. |
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Howard S. Hoover, Jr. |
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______________ Secretary |
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of INTERNATIONAL DISPOSAL
CORP. OF CALIFORNIA |
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Subscribed and sworn to before me this 7th day of May, 1973.
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/s/ Dorothy A. Cross Notary
Public in
and for the County of Darris, State of Texas
Dorothy A. Cross
My Commission Expires: 6-1-73 |
exv3w572
Exhibit 3.572
AMENDED AND RESTATED BYLAWS
OF
INTERNATIONAL DISPOSAL CORP. OF CALIFORNIA
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the Corporation,
which shall have inscribed thereon the name of the Corporation, and the state and year of its
organization. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or. other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w573
Exhibit 3.573
CERTIFICATE OF INCORPORATION
SELAS ENTERPRISES LTD.
Under Section 402 of the Business Corporation Law.
The undersigned, for the purpose of forming a corporation pursuant to Section 402 of the
Business Corporation Law of the State of New York, does hereby certify and set forth:
FIRST: The name of the corporation is SELAS ENTERPRISES LTD.
SECOND: The purposes for which the corporation is formed are:
To engage in any lawful act or activity for which corporations may be organized under the
business corporation law, provided that the corporation is not formed to engage in any act or
activity which requires the act or approval of any state official, department, board, agency or
other body without such approval or consent first being obtained.
Directly, or through ownership of stock in any corporation, to purchase, lease, exchange, or
otherwise acquire real estate and property, either improved or unimproved, and any interest
therein; to own, hold, control, maintain, manage and develop the same; to erect, construct,
maintain, improve, rebuild, enlarge, alter, manage, operate and control all kinds of buildings,
houses, hotels, apartments, motels, stores, offices, warehouses, mills, shops, factories and
plants and all structures and erections of any description on any lands owned, held or leased by
the corporation, or upon any other lands; to lease or sublet offices, stores, apartments and other
space in such building or buildings, and to sell lease, sublet mortgage, exchange, assign,
transfer, convey, pledge, alienate or otherwise dispose of any such real estate and property, and
any interest therein.
To acquire by purchase, lease or manufacture, or otherwise, any personal property deemed
necessary or proper or useful in the equipment, furnishing, improvement, development or management
of any property, real or personal, at any time owned, held or occupied by the corporation and to
invest, trade and deal in any personal property deemed beneficial to the corporation, and to
mortgage, pledge, sell, let or otherwise dispose of any personal property at any time owned or held
by the corporation.
To purchase or otherwise acquire, hold, exchange, pledge, hypothecate, sell, deal in and
dispose of mortgages covering any kind of real and personal property, tax liens and transfers
of tax liens on real estate.
To make, enter into, perform and arrange for carrying out, contracts for constructing,
building, altering, improving, repairing, decorating, maintaining, furnishing and fitting up
buildings, tenements and structures of every description, and to advance money to and enter into
agreements of all kinds with building contractors, property owners and others, for said purpose.
To acquire by purchase, subscription, underwriting or otherwise, and to own, hold for
investment, or otherwise, and to use, sell, assign, transfer, mortgage, pledge, exchange or
otherwise dispose of real and personal property of every sort and description and wheresoever
situated, including shares of stock, bonds, debentures, notes, scrip, securities, evidences of
indebtedness, contracts or obligations of any corporation or association, whether domestic or
foreign, or of any firm or individual or of the United States or any state, territory or
dependency of the United States or any foreign country, or any municipality or local authority
within or without the United States, and also to issue in exchange therefor, stocks, bonds or
other securities or evidences of indebtedness of this corporation and, while the owner or holder
of any such property, to receive, collect and dispose of the interest, dividends and income on or
from such property and to possess and exercise in respect thereto all of the rights, powers and
privileges of ownership, including all voting powers thereon.
To construct, build, purchase, lease or otherwise acquire, equip, hold, own, improve,
develop, manage, maintain, control, operate, lease, mortgage, create liens upon, sell, convey or
otherwise dispose of and turn to account, any and all plants, machinery, works, implements and
things or property, real and personal, of every kind and description, incidental to, connected
with, or suitable, necessary or convenient for any of the purposes enumerated herein, including
all or any part or parts of the properties, assets, business and good will of any persons, firms,
associations or corporations.
The powers, rights and privileges provided in this certificate are not to be deemed to be in
limitation of similar, other or additional powers, rights and privileges granted or permitted to a
corporation by the Business Corporation Law, it being intended that this corporation shall have all
the rights, powers and privileges granted or permitted to a corporation by such statute.
THIRD: The office of the corporation is to be located in the County of Suffolk, State of New
York.
FOURTH: The aggregate number of shares which the corporation shall have the authority to
issue is Two Hundred (200), all of which shall be without par value.
FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process
against it may be served. The post office address to which the Secretary of State shall mail a
copy of any process against the corporation served on him is:
Charles Eichinger, Esq.
202 East Main Street
Smithtown, New York 11787
IN WITNESS WHEREOF, this certificate has been subscribed to this 18th day of June, 1986 by the
undersigned who affirms that the statements made herein are true under penalties of perjury
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/s/ Gerald Weinberg
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GERALD WEINBERG |
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90 State Street
Albany, New York |
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CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
SELAS ENTERPRISES LTD.
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
* * * * *
1. |
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The name under which the corporation was formed is Selas Enterprises Ltd. |
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2. |
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The certificate of incorporation of said corporation was filed by the Department of
State on the June 19, 1986. |
3. |
(a) |
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The certificate of incorporation is amended to change the name of the corporation. |
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(b) |
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To effect the foregoing, the First Article is amended to read as follows: |
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The name of the corporation is ISLAND WASTE SERVICES LTD. |
4. |
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The amendment was authorized by: |
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Unanimous Written Consent of the board of directors and by Action by Written
Consent of the Sole Shareholder. |
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/s/ Donald W. Slager |
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By: |
Donald W. Slager
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Its: |
Executive Vice President |
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exv3w574
Exhibit 3.574
BY-LAWS
ARTICLE I
The Corporation
Section 1. Name. The legal name of this corporation (hereinafter called the
Corporation) is SELAS ENTERPRISES LTD.
Section 2. Offices. The Corporation shall have its principal office in the State of
New York . The Corporation may also have offices at such other places within and without the
United States as the Board of Directors may from time to time appoint or the business of the
Corporation may require.
Section 3. Seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words Corporate Seal, New York. One or more
duplicate dies for impressing such seal may be kept and used.
ARTICLE II
Meetings of Shareholders
Section I. Place of Meetings. All meetings of the shareholders shall be held at the
principal office of the Corporation in the State of New York or at such other place, within or
without the State of New York, as is fixed in the notice of the meeting.
Section 2. Annual Meeting. An annual meeting of the shareholders of the Corporation
for the election of directors and the transaction of such other business as may properly come
before the meeting shall be held on the first Monday of in each year if not a legal holiday, and
if a legal holiday, then on the next secular day following, at ten oclock A. M., Eastern
Standard Time, or at such other time as is fixed in the notice of the meeting. If for any reason
any annual meeting shall not be held at the time herein specified, the same may be held at any
time thereafter
4
upon notice, as herein provided, or the business thereof may be transacted at any special
meeting called for the purpose.
Section 3. Special Meetings. Special meetings of shareholders may be called by the
President whenever he deems it necessary or advisable. A special meeting of the shareholders shall
be called by the President whenever so directed in writing by a majority of the entire Board of
Directors or whenever the holders of one-third (1/3) of the number of shares of the capital stock
of the Corporation entitled to vote at such meeting shall , in writing, request the same.
Section 4. Notice of Meetings. Notice of the time and place of the annual and of each
special meeting of the shareholders shall be given to each of the shareholders entitled to vote at
such meeting by mailing the same in a postage prepaid wrapper addressed to each such shareholders
at his address as it appears on the books of the Corporation, or by delivering the same personally
to any such shareholder in lieu of such mailing, at least ten (10) and not more than fifty (50)
days prior to each meeting. Meetings may be held without notice if all of the shareholders
entitled to vote thereat are present in person or by proxy, or if notice thereof is waived by all
such shareholders not present in person or by proxy, before or after the meeting. Notice by mail
shall be deemed to be given when deposited, with postage thereon prepaid, in the United States
mail. If a meeting is adjourned to another time, not more than thirty (30) days hence, or to
another place, and if an announcement of the adjourned time or place is made at the meeting, it
shall not be necessary to give notice of the adjourned meeting unless the Board of Directors,
after adjournment fix a new record date for the adjourned meeting. Notice of the annual and each
special meeting of the shareholders shall indicate that it is being issued by or at the direction
of the person or persons calling the meeting, and shall state the name and capacity of each such
person. Notice of each special meeting shall also state the purpose or purposes for which it has
been called. Neither the business to be transacted at nor the purpose of the annual or any special
meeting of the shareholders need be specified in any written waiver of notice.
Section 5. Record Date for Shareholders. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting, or for the purpose
of determining shareholders entitled to receive payment of any
5
dividend or other distribution or the allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion, or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more
than fifty (50) days nor less than ten (10) days before the date of such meeting, nor more than
fifty (50) days prior to any other action. If no record date is fixed, the record date for
determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at
the close of business on the day next preceding the day on which notice is given, or, if no notice
is given, the day on which the meeting is held; the record date for determining shareholders
entitled to express consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is necessary, shall be the day on which the first written consent is
expressed; and the record date for determining shareholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or to vote at any meeting
of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
Section 6. Proxy Representation. Every shareholder may authorize another person or
persons to act for him by proxy in all matters in which a shareholder is entitled to participate,
whether by waiving notice of any meeting, voting or participating at a meeting, or expressing
consent or dissent without a meeting. Every proxy must be signed by the shareholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after eleven months from its date unless
such proxy provides for a longer period. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except as otherwise provided in Section 608 of the New York Business
Corporation Law.
Section 7. Voting at Shareholders Meetings. Each share of stock shall entitle the
holder thereof to one vote. In the election of directors, a plurality of the votes cast shall
elect. Any other action shall be authorized by a majority of the votes cast except where the New
York Business Corporation Law prescribes a different percentage of votes or a different exercise
of voting power. In the election of directors, and for any other action, voting need not be by
ballot.
Section 8. Quorum and Adjournment. Except for a special election of directors
pursuant to Section 603 of the New York Business Corporation Law, the presence, in person or by
proxy, of the holders of
6
a majority of the shares of the stock of the Corporation outstanding and entitled to vote
thereat shall be requisite and shall constitute a quorum at any meeting of the shareholders. When
a quorum is once present to organize a meeting, it shall not be broken by the subsequent
withdrawal of any shareholders. If at any meeting of shareholders there shall be less than a
quorum so present, the shareholders present in person or by proxy and entitled to vote thereat,
may adjoun the meeting from time to time until a quorum shall be present, but no business shall
be transacted at any such adjourned meeting except such as might have been lawfully transacted
had the meeting not adjourned.
Section 9. List of Shareholders. The officer who has charge of the stock ledger of
the Corporation shall prepare, make and certify, at least ten (10) days before every meeting of
shareholders, a complete list of the shareholders, as of the record date fixed for such meeting,
arranged in alphabetical order, and showing the address of each shareholder and the number of
shares registered in the name of each shareholder. Such list shall be open to the examination of
any shareholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) day prior to the meeting, either at a place within the city or other
municipality or community where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any shareholder who is present. If the right to vote at any meeting is challenged, the inspectors
of election, if any, or the person presiding thereat, shall re-quire such list of shareholders to
be produced as evidence of the right of the persons challenged to vote at such meeting, and all
persons who appear from such list to be shareholders entitled to vote thereat may vote at such
meeting.
Section 10. Inspectors of Election. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at
the meeting may, and at the request of any shareholder entitled to vote thereat shall, appoint one
or more inspectors. In case any person who may be appointed as an inspector fails to appear or
act, the vacancy may be filled by appointment made by the Board of Directors in advance of the
meeting or at the meeting by the person presiding thereat. Each inspector, if any, before
entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to the best of his
ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the
voting power of each, the shares of stock
7
represented at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the meeting or any
shareholder entitled to vote thereat, the inspector or inspectors, if any, shall make a report in
writing of any challenge, question or matter determined by him or them and execute a certificate
of any fact found by him or them. Any report or certificate made by the inspector or inspectors
shall be prima facie evidence of the facts stated and of the vote as certified by them.
Section 11. Action of the Shareholders Without Meetings. Any action which may be
taken at any annual or special meeting of the shareholders may be taken without a meeting on
written consent, setting forth the action so taken, signed by the holders of all outstanding
shares entitled to vote thereon. Written consent thus given by the holders of all outstanding
shares entitled to vote shall have the same effect as a unanimous vote of the shareholders.
ARTICLE III
Directors
Section 1. Number of Directors. The number of directors which shall constitute the
entire Board of Directors shall be at least three, except that where all outstanding shares of the
stock of the Corporation are owned beneficially and of record but less than three shareholders,
the number of directors may be less than three by not less than the number of shareholders.
Subject to the foregoing limitation, such number may be fixed from time to time by action of a
majority of the entire Board of Directors or of the shareholders at an annual or special meeting,
or, if the number of directors is not so fixed , the number shall be three or shall be equal to
the number of shareholders (determined as aforesaid), whichever is less. Until such time as the
corporation shall issue shares of its stock, the Board of Directors shall consist of two persons.
No decrease in the number of directors shall shorten the term of any incumbent director.
Section 2. Election and Term . The initial Board of Directors shall be elected by the
incorporator and each initial director so elected shall hold office until the first annual
meeting of shareholders and until
8
his successor has been elected and qualified. Thereafter, each director who is elected at an
annual meeting of shareholders, and each director who is elected in the interim to fill a vacancy
or a newly created directorship, shall hold office until the next annual meeting of shareholders
and until his successor has been elected and qualified.
Section 3. Filling Vacancies, Resignation and Removal. Any director may tender his
resignation at any time. Any director or the entire Board of Directors may be removed, with or
without cause, by vote of the shareholders. In the interim between annual meetings of shareholders
or special meetings of shareholders called for the election of directors or for the removal of one
or more directors and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting
from the resignation or removal of directors for cause or without cause, may be filled by the vote
of a majority of the remaining directors then in office, although less than a quroum, or by the
sole remaining director.
Section 4. Qualifications and Powers. Each director shall be at least eighteen years
of age. A director need not be a shareholder, a citizen of the United States or a resident of
the State of New York. The business of the Corporation shall be managed by the Board of
Directors, subject to the provisions of the Certificate of Incorporation. In addition to the
powers and authorities by these By-Laws expressly conferred upon it, the Board may exercise all
such powers of the Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these By-Laws directed or required to be exercised or
done exclusively by the shareholders.
Section 5. Regular and Special Meetings of the Board. The Board of Directors may hold
its meetings, whether regular or special, either within or without the State of New York. The
newly elected Board may meet at such place and time as shall be fixed by the vote of the
shareholders at the annual meeting, for the purpose of organization or otherwise, and no notice of
such meeting shall be necessary to the newly elected directors in order legally to constitute the
meeting, provided a majority of the entire Board shall be present; or they may meet at such place
and time as shall be fixed by the consent in writing of all directors. Regular meetings of the
Board may be held with or without notice at such time and place as shall from time to time be
determined by resolution of the Board. Whenever the time or place of regular meetings of the Board
shall have been determined by resolution of the Board, no regular meetings shall be held pursuant
to any resolution of the Board
9
altering or modifying its previous resolution relating to the time or place of the holding of
regular meetings, without first giving at least three days written notice to each director, either
personally or by telegram, or at least five days written notice to each director by mail, of the
substance and effect of such new resolution relating to the time and place at which regular
meetings of the Board may thereafter be held without notice. Special meetings of the Board shall
be held whenever called by the President, Vice-President, the Secretary or any director in
writing. Notice of each special meeting of the Board shall be delivered personally to each
director or sent by telegraph to his residence or usual place of business at least three days
before the meeting, or mailed to him to his residence or usual place of business at least five
days before the meeting. Meetings of the Board, whether regular or special, may be held at any
time and place, and for any purpose, without notice, when all the directors are present or when
all directors not present shall, in writing, waive notice of and consent to the holding of such
meeting, which waiver and consent may be given after the holding of such meeting. All or any of
the directors may waive notice of any meeting and the presence of a director at any meeting of
the Board shall be deemed a waiver of notice thereof by him. A notice, or waiver of notice, need
not specify the purpose or purposes of any regular or special meeting of the Board.
Section 6. Quorum and Action. A majority of the entire Board of Directors shall
constitute a quorum except that when the entire Board consists of one director, then one director
shall constitute a quorum, and except that when a vacancy or vacancies prevents such majority, a
majority of the directors in office shall constitute a quorum, provided that such majority shall
constitute at lease one-third of the entire Board. A majority of the directors present, whether or
not they constitute a quorum, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the New York Business Corporation Law,
the vote of the majority of the directors present at a meeting at which a quorum is present shall
be the act of the Board.
Section 7. Telephonic Meetings. Any member or members of the Board of Directors, or
of any committee designated by the Board, may participate in a meeting of the Board, or any such
committee, as the case may be, by means of conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other at the same time,
and participation in a meeting by such means shall constitute presence in person at such meeting.
10
Section 8. Action Without a Meeting. Any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 9. Compensation of Directors. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, for attendance at each regular or special meeting of
the Board or of any committee designated by the Board and may be paid a fixed sum for attendance
at such meeting, or a stated salary as director, or both. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor; provided however that directors who are also salaried officers
shall not receive fees or salaries as directors.
ARTICLE IV
Committees
Section 1. In General. The Board of Directors may, by resolution or resolutions
passed by the affirmative vote therefore of a majority of the entire Board, designate an Executive
Committee and such other committees as the Board may from time to time determine, each to consist
of three or more directors, and each of which, to the extent provided in the resolution or in the
certificate of incorporation or in the By-Laws, shall have all the powers of the Board, except
that no such Committee shall have power to fill vacancies in the Board, or to change the
membership of or to fill vacancies in any Committee, or to make, amend, repeal or adopt By-Laws of
the Corporation, or to submit to the shareholders any action that needs shareholder approval under
these By-Laws or the New York Business Corporation Law, or to fix the compensation of the directors
for serving on the Board or any committee thereof, or to amend or repeal any resolution of the
Board which by its terms shall not be so amendable or repeatable. Each committee shall serve at
the pleasure of the Board. The Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
11
Section 2. Executive Committee. Except as otherwise limited by the Board of Directors
or by these By-Laws, the Executive Committee, if so designated by the Board of Directors, shall
have and may exercise, when the Board is not in session, all the powers of the Board of Directors
in the management of the business and affairs of the Corporation, and shall have power to
authorize the seal of the Corporation to be affixed to all papers which may require it. The Board
shall have the power at any time to change the membership of the Executive Committee, to fill
vacancies in it, or to dissolve it. The Executive Committee may make rules for the conduct of its
business and may appoint such assistance as it shall from time to time deem necessary. A majority
of the members of the Executive Committee, if more than a single member, shall constitute a
quorum.
ARTICLE V
Officers
Section 1. Designation, Term and Vacancies. The officers of the Corporation shall be
a President, one or more Vice-Presidents, a Secretary, a Treasurer, and such other officers as the
Board of Directors may from time to time deem necessary. Such officers may have and perform the
powers and duties usually pertaining to their respective offices, the powers and duties
respectively prescribed by law and by these By-Laws, and such additional powers and duties as may
from time to time be prescribed by the Board. The same person may hold any two or more offices,
except that the offices of President and Secretary may not be held by the same person unless all
the issued and outstanding stock of the Corporation is owned by one person, in which instance such
person may hold all or any combination of offices.
The initial officers of the Corporation shall be appointed by the initial Board of Directors,
each to hold office until the meeting of the Board of Directors following the first annual meeting
of shareholders and until his successor has been appointed and qualified. Thereafter, the officers
of the Corporation shall be appointed by the Board as soon as practicable after the election of the
Board at the annual meeting of shareholders, and each officer so appointed shall hold office until
the first meeting of the Board of Directors following the next annual meeting of shareholders and
until his successor has been appointed and qualified. Any officer may be removed at any time, with
or without cause, by the affirmative note therefor of a majority of the entire Board of
Directors. All other agents and employees of the Corporation shall hold office during the pleasure
of the Board of Directors. Vacancies occurring
12
among the officers of the Corporation shall be filled by the Board of Directors. The salaries
of all officers of the Corporation shall be fixed by the Board of Directors.
Section 2. President. The President shall preside at all meetings of the shareholders
and at all meetings of the Board of Directors at which he may be present. Subject to the direction
of the Board of Directors, he shall be the chief executive officer of the Corporation, and shall
have general charge of the entire business of the Corporation. He may sign certificates of stock
and sign and seal bonds, debentures, contracts or other obligations authorized by the Board, and
may, without previous authority of the Board, make such contracts as the ordinary conduct of the
Corporations business requires. He shall have the usual powers and duties vested in the President
of a corporation. He shall have power to select and appoint all necessary officers and employees
of the Corporation, except those selected by the Board of Directors, and to remove all such
officers and employees except those selected by the Board of Directors, and make new appointments
to fill vacancies. He may delegate any of his powers to a Vice-President of the Corporation.
Section 3. Vice-President. A Vice-President shall have such of the Presidents powers
and duties as the President may from time to time delegate to him, and shall have such other powers
and perform such other duties as may be assigned to him by the Board of Directors. During the
absence or incapacity of the President, the Vice-President, or, if there be more than one, the
Vice-President having the greatest seniority in office, shall perform the duties of the President,
and when so acting shall have all the powers and be subject to all the responsibilities of the
office of President.
Section 4. Treasurer. The Treasurer shall have custody of such funds and securities of
the Corporation as may come to his hands or be committed to his care by the Board of Directors.
Whenever necessary or proper, he shall endorse on behalf of the Corporation, for collection,
checks, notes, or other obligations, and shall deposit the same to the credit of the Corporation
in such bank or banks or depositaries, approved by the Board of Directors as the Board of Directors
or President may designate. He may sign receipts or vouchers for payments made to the Corporation,
and the Board of Directors may require that such receipts or vouchers shall also be signed by some
other officer to be designated by them. Whenever required by the Board of Directors, he shall
render a statement of his cash accounts and such other statements respecting the affairs of the
Corporation as may be required. He shall keep proper and accurate books of account. He shall
perform all
13
acts incident to the office of Treasurer, subject to the control of the Board.
Section 5. Secretary. The Secretary shall have custody of the seal of the Corporation
and when required by the Board of Directors, or when any instrument shall have been signed by the
President duly authorized to sign the same, or when necessary to attest any proceedings of the
shareholders or directors, shall affix it to any instrument requiring the same and shall attest
the same with his signature, provided that the seal may be affixed by the President or
Vice-President or other officer of the Corporation to any document executed by either of them
respectively on behalf of the Corporation which does not require the attestation of the Secretary.
He shall attend to the giving and serving of notices of meetings. He shall have charge of such
books and papers as properly belong to his office or as may be committed to his care by the Board
of Directors. He shall perform such other duties as appertain to his office or as may be required
by the Board of Directors.
Section 6. Delegation. In case of the absence of any officer of the Corporation, or
for any other reason that the Board of Directors may deem sufficient, the Board may temporarily
delegate the powers or duties, or any of them, of such officer to any other officer or to any
director.
ARTICLE VI
Stock
Section I. Certificates Representing Shares. All certificates representing shares of
the capital stock of the Corporation shall be in such form not inconsistent with the Certificate
of Incorporation, these By-Laws or the laws of the State of New York and shall set forth thereon
the statements prescribed by Section 508, and where applicable, by Sections 505, 616, 620, 709 and
1002 of the Business Corporation Law. Such shares shall be approved by the Board of Directors,
and shall be signed by the President or a Vice-President and by the Secretary or the Treasurer and
shall bear the seal of the Corporation and shall not be valid unless so signed and sealed.
Certificates countersigned by a duly appointed transfer agent and/or registered by a duly
appointed registrar shall be deemed to be so signed and sealed whether the signatures be manual or
facsimile signatures and whether the seal be a facsimile seal or any other form of seal. All
certificates shall be consecutively numbered and the name of the person owning the shares
represented thereby, his
14
residence, with the number of such shares and the date of issue, shall be entered on the
Corporations books. All certificates surrendered shall be cancelled and no new certificates
issued until the former certificates for the same number of shares shall have been surrendered
and cancelled, except as provided for herein.
In case any officer or officers who shall have signed or whose facsimile signature or
signatures shall have been affixed to any such certificate or certificates, shall cease to be such
officer or officers of the Corporation before such certificate or certificates shall have been
delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the
Corporation, and may be issued and delivered as though the person or persons who signed such
certificates, or whose facsimile signature or signatures shall have been affixed thereto, had not
ceased to be such officer or officers of the Corporation.
Any restriction on the transfer or registration of transfer of any shares of stock of any
class or series shall be noted conspicuously on the certificate representing such shares.
Section 2. Fractional Share Interests. The Corporation, may, but shall not be
required to, issue certificates for fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional interests by those
entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full share upon the
surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share
shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in any distribution of
the assets of the Corporation in the event of liquidation. The Board of Directors may cause scrip
or warrants to be issued subject to the conditions that they shall become void if not exchanged
for certificates representing full shares before a specified date, or subject to the condition
that the shares for which scrip or warrants are exchangeable may be sold by the Corporation and
the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board of Directors may impose.
Section 3. Addresses of Shareholders. Every shareholder shall furnish the Corporation
with an address to which notices of meetings and all other notices may be served upon or mailed to
him, and in
15
default thereof notices may be addressed to him at his last known post office address.
Section 4. Stolen, Lost or Destroyed Certificates. The Board of Directors may in its
sole discretion direct that a new certificate or certificates of stock be issued in place of any
certificate or certificates of stock theretofore issued by the Corporation, alleged to have been
stolen, lost or destroyed, and the Board of Directors when authorizing the issuance of such new
certificate or certificates, may, in its discretion, and as a condition precedent thereto, require
the owner of such stolen, lost or destroyed certificate or certificates or his legal
representatives to give to the Corporation and to such registrar or registrars and/or transfer
agent or transfer agents as may be authorized or required to countersign such new certificate or
certificates, a bond in such sum as the Corporation may direct not exceeding double the value of
the stock represented by the certificate alleged to have been stolen, lost or destroyed, as
indemnity against any claim that may be made against them or any of them for or in respect of the
shares of stock represented by the certificate alleged to have been stolen, lost or destroyed.
Section 5. Transfers of Shares. Upon compliance with all provisions restricting the
transferability of shares, if any, transfers of stock shall be made only upon the books of the
Corporation by the holder in person or by his attorney thereunto authorized by power of attorney
duly filed with the Secretary of the Corporation or with a transfer agent or registrar, if any,
upon the surrender and cancellation of the certificate or certificates for such shares properly
endorsed and the payment of all taxes due thereon. The Board of Directors may appoint one or more
suitable banks and/or trust companies as transfer agents and/or registrars of transfers, for
facilitating transfers of any class or series of stock of the Corporation by the holders thereof
under such regulations as the Board of Directors may from time to time prescribe. Upon such
appointment being made all certificates of stock of such class or series thereafter issued shall
be countersigned by one of such transfer agents and/or one of such registrars of transfers, and
shall not be valid unless so countersigned.
ARTICLE VII
Dividends and Finance
Section 1. Dividends. The Board of Directors shall have power to fix and determine
and to vary, from time to time, the amount
16
of the working capital of the Corporation before declaring any dividends among it
shareholders, and to direct and determine the use and disposition of any net profits or surplus,
and to determine the date or dates for the declaration and payment of dividends and to determine
the amount of any dividend, and the amount of any reserves necessary in their judgment before
declaring any dividends among its shareholder, and to determine the amount of the net profits of
the Corporation from time to time available for dividends.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on the last day
of in each year and shall begin on the next succeeding day, or shall be for such other period as
the Board of Directors may from time to time designate with the consent of the Department of
Taxation and Finance, where applicable.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Stock of Other Corporations. The Board of Directors shall have the right
to authorize any director, officer or other person on behalf of the Corporation to attend, act and
vote at meetings of the Shareholders of any corporation in which the Corporation shall hold stock,
and to exercise thereat any and all rights and powers incident to the ownership of such stock, and
to execute waivers of notice of such meetings and calls therefor; and authority may be given to
exercise the same either on one or more designated occasions, or generally on all occasions until
revoked by the Board. In the event that the Board shall fail to give such authority, such authority
may be exercised by the President in person or by proxy appointed by him on behalf of the
Corporation.
Any stocks or securities owned by this Corporation may, if so determined by the Board of
Directors, be registered either in the name of this Corporation or in the name of any nominee or
nominees appointed for that purpose by the Board of Directors.
Section 2. Books and Records. Subject to the New York Business Corporation Law, the
Corporation may keep its books and accounts outside the State of New York.
Section 3. Notices. Whenever any notice is required by these By-Laws to be given,
personal notice is not meant unless expressly so
17
stated, and any notice so required shall be deemed to be sufficient if given by depositing
the same in a post office box in a sealed postpaid wrapper, addressed to the person entitled
thereto at his last known post office address, and such notice shall be deemed to have been given
on the day of such mailing.
Whenever any notice whatsoever is required to be given under the provisions of any law, or
under the provisions of the Certificate of Incorporation or these By-Laws a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
Section 4. Amendments. Except as otherwise provided herein, these
By-Laws may be
altered, amended or repealed and By-Laws may be made at any annual meeting of the shareholders or
at any special meeting thereof if notice of the proposed alteration, amendment or repeal, or By-Law
or By-Laws to be made be contained in the notice of such special meeting, by the holders of a
majority of the shares of stock of the Corporation outstanding and entitled to vote thereat; or by
a majority of the Board of Directors at any regular meeting of the Board of Directors, or at any
special meeting of the Board of Directors, if notice of the proposed alteration, amendment or
repeal, or By-Law or By-Laws to be made, be contained in the Notice of such Special Meeting.
18
exv3w575
Exhibit 3.575
CERTIFICATE OF LIMITED PARTNERSHIP
OF
ITASCA LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The name of the limited partnership is Itasca Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The Corporation
Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Itasca Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, |
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its General Partner |
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By:
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/s/ Jo Lynn White
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Name:
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Jo Lynn White |
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Title:
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Secretary |
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 04:00 PM 12/12/2001 |
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010636876 3467815 |
exv3w576
Exhibit 3.576
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
ITASCA LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Itasca Landfill TX, LP (the First
Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste Landfill
Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste Systems
Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Itasca Landfill TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State on December 12, 2001, and the related Agreement of Limited Partnership of Itasca
Landfill TX, LP, dated as of December 12, 2001 (the Agreement) between AWLH and BFI Waste Systems
of North America, Inc., a Delaware corporation (BFINA). Unless specifically defined herein,
capitalized terms appearing in this First Amendment shall have the meanings given those terms in
the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the Partnership to
AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited partner
of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby consents
to (a) the transfer described in Recital B above of BFINAs interest in the Partnership to AWSH and
(b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all terms
and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc., a
Delaware corporation
General Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc., a
Delaware corporation
Limited Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn white, Secretary |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
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Allied Waste Systems Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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99 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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1 |
% |
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TOTAL
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100 |
% |
-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
ITASCA LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and BFI WASTE
SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Itasca Landfill TX, LP. The General Partner
may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests at
such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may rely
upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right, during
ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or otherwise
voluntarily transfer by any means whatever (Transfer) all or any portion of its interest in the
Partnership without the prior written consent of the General Partner and Limited Partners holding a
simple majority of the Percentage Interests held by all of the non-Transferring Limited Partners. A
transferee of a Partners interest in the Partnership will be admitted as a Substituted Limited
Partner only pursuant to Section 8.3 hereof. Any purported Transfer that does not comply
with the provisions of this Section 8 shall be void and shall not cause or constitute a
dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases
to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if any,
shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership and
its business without dissolution. The election of a new General Partner shall require the unanimous
written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person ceases
to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and items thereof
of the Partnership for the taxable year in which the liquidation of the Partnership occurs shall be
allocated among the Partners so as to adjust the Capital Accounts of the Partners as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in this
Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Partnership have been distributed to the Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this Section
11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
8
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on Exhibit
A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White |
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Its:
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Secretary
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Name and Addresses of Partners |
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Contribution |
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Interest |
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General Partner:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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10.00 |
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1% |
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Limited Partner:
BFI Waste Systems of North America, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
990.00 |
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99% |
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exv3w577
Exhibit 3.577
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F0100 - Page 1 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE |
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P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333 |
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Certificate of Formation |
The undersigned, pursuant to Senate Bill No. 2395, Chapter 402, Laws of 1994, hereby executes the
following document and sets forth:
1. Name of the Limited Liability Company
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Jackson County Landfill, LLC |
2. The future effective date is
(Complete if applicable) ___________________________________
3. Federal Tax ID
4. Name and Street Address of the Registered Agent and Registered Office is
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Name C T Corporation System |
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Physical/Address c/o C T Corporation System, 631 Lakeland East Drive |
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P.O. Box ________________________________________________________ |
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City, State, ZIPS, ZIP4
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Flowood
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MS
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39232 |
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5. If the
Limited Liability Company is to have a specific date of dissolution, the
latest
date upon which the Limited Liability Company is to dissolve
6. Is full or partial
management of the Limited Liability Company vested in a manager or
managers? (Mark appropriate box)
7. Other matters the managers or members elect to include
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N/A |
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Rev. 01/96
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F0101 - Page 2 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE |
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P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333 |
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Certificate of Formation |
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By: |
Signature |
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/s/ Jo Lynn White |
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(Please keep writing within blocks) |
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Printed Name
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Jo Lynn White
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Title
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Secretary |
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Street and Mailing Address
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Physical Address 15880 N. Greenway-Hayden Loop, Suite 100 |
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Scottsdale
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AZ
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85260 |
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By: |
Signature |
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Printed Name
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Title |
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Street and Mailing Address
Rev. 01/96
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Business ID: 722506
Date Filed: 12/04/2008 12:00 PM
C. Delbert Hosemann, Jr.
Secretary of State |
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F0101 - Page 1 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE |
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P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333 |
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Certificate of Amendment |
The undersigned corporation pursuant to Senate Bill No. 2395, Chapter 402 Laws of 1994,
hereby executes the following Certificate of Amendment and sets forth:
1. Name of the Limited Liability Company
Jackson County Landfill, LLC
2. The future effective date is
(Complete if applicable)
3. The amendment to the certificate is as follows
Paragraph 6 of the Certificate of Formation is hereby amended in its
entirety as follows:
The full management of the Limited Liability Company is not vested in a
manager or managers. The full management of the Liability
company is vested in its sole member.
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By: |
Signature |
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/s/ Jo Lynn White |
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(Please keep writing within blocks) |
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Printed Name
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Jo Lynn White |
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Title: Asst. Secretary of Sole Member |
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Street and Mailing Address
Physical Address 18500 North Allied Way
P.O. Box
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City, State, ZIP5, ZIP4
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Phoenix
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AZ
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85054 |
Rev. 01/96
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F0101 - Page 2 of 2
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OFFICE OF THE MISSISSIPPI SECRETARY OF STATE |
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P.O. BOX 136, JACKSON, MS 39205-0136 (601) 359-1333 |
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Certificate of Amendment |
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By: |
Signature |
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Printed Name
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Title |
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Street and Mailing Address
Physical Address
P.O. Box
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City, State, ZIP5, ZIP4
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Rev. 01/96
exv3w578
Exhibit 3.578
OPERATING AGREEMENT OF
JACKSON COUNTY LANDFILL, LLC
This Operating Agreement is executed to be effective as of September 12, 2002, by Allied Waste
North America, Inc., a Delaware corporation (the Member), as the sole member of Jackson County
Landfill, LLC, a Mississippi limited liability company (the Company).
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 7.6 below.
1.2 Formation. The Member hereby forms the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate.
1-3 Name. The name of the Company is Jackson County Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Mississippi law and the laws of any other jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Mississippi shall
be 631 Lakeland East Drive, Flowood, Mississippi 39232. The registered office may be changed to any
other place within the State of Mississippi by the Member. The Company may maintain a registered
office in any state within which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Mississippi are CT Corporation System, c/o CT
Corporation System, 631 Lakeland East Drive, Flowood, Mississsippi 39232. The Companys agent for
service of legal process may be changed by the Member.
1-8 Term. The term of the Company shall commence on the date the Certificate is filed
with the Mississippi Secretary of State, and shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation
(the Certificate) to be filed with the Mississippi Secretary of State. The Member shall
file any amendments to the Certificate deemed necessary by it to comply with the Act.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A attached to
this Agreement.
2.2 Contributions of the Member. The Member shall contribute to the Company the cash
or other assets listed on Exhibit A attached to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions. The Member shall not be liable
for the debts, liabilities, contracts or any other obligations of the Company. Except as agreed
upon by the Member, and except as otherwise provided by the Act or by any other applicable state
law, the Member shall be liable only to make the Capital Contributions as provided in Section 2.2
above and shall not be required to make any other Capital Contributions or loans to the Company.
Nothing contained in this Agreement is intended or will be deemed to benefit any creditor of the
Company, and no creditor of the Company will be entitled to require the Member to make additional
Capital Contributions to the Company.
2.5 Member Loans. The Member may make loans to the Company on such terms and
conditions as the Member determines from time to time.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 6 below, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. MANAGEMENT
4.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of
2
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
4.3 Indemnification. To the fullest extent permitted by law, the Company, its receiver
or its trustee shall defend, indemnify and save harmless the Member, its officers and directors,
and the officers of the Company (the Indemnified Parties) from and against all losses,
claims, costs, liabilities and damages incurred by them by reason of any act performed or omitted
to be performed by them in connection with the business of the Company, including attorneys fees
incurred by them in connection with the defense of any action based on any such act or omission;
provided, however, no Indemnified Party shall be indemnified from any liability for fraud, bad
faith, willful misconduct or gross negligence.
SECTION 5. BOOKS AND RECORDS; TRANSFERS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
5.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The decision by the Member to dissolve the Company; or
(b) The entry of a decree of dissolution under Section 79-29-802 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 6.1
above, the Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Mississippi Secretary of State or until a decree dissolving
the Company has been entered by a court of competent jurisdiction.
(a) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member (or court-appointed trustee if there is no remaining Member), shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 above.
3
The proceeds from liquidation of the Companys property, to the extent sufficient therefor, shall
be applied and distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities (including
those to the Member as a creditor, to the extent permitted by law) and the establishment of any
necessary reserves; and
(ii) To the Member.
6.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed with the Mississippi Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member,
its legal representatives and its permitted successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Mississippi Law. The laws of Mississippi shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Mississippi Limited Liability Company Act, as set forth in Miss. Code
Ann. § 79-29-101, et. seq., as amended from time to time.
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
4
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Certificate has the meaning given that term in Section 1.9.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on member loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, limited partnership, corporation, limited
liability company, trust or other legal entity.
IN WITNESS WHEREOF, the Member has executed this Agreement effective as of the date first
above written.
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Allied Waste North America, Inc., |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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Name:
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Jo Lynn White |
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Title:
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Assistant Secretary |
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EXHIBIT A
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Name and Address of the Member |
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Initial Capital Contribution |
Allied Waste North America, Inc.
15880 North Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
100.00 |
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exv3w579
Exhibit 3.579
PARTNERSHIP AGREEMENT
OF
JASPER COUNTY DEVELOPMENT COMPANY PARTNERSHIP
This Partnership Agreement is entered into as of January 8, 2007, between Allied Waste North
America, Inc., a Delaware corporation, and Allied Waste Landfill Holdings, Inc., a Delaware
corporation, each individually referred to herein as a Partner, and collectively as Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Jasper County Development Company
Partnership, an Indiana general partnership. The name of the Partnership may be changed upon the
consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 18500 North
Allied Way, Phoenix, Arizona 85054, or at any other location as the Partners may from time to time
designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050, unless
the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described in
Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to the
Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of such Partners Capital Account without
the written consent of the other Partner. Under circumstances requiring a return of capital, no
Partner shall have the right to receive property other than cash, except as may be specifically
provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of the
Partners. No Partner shall be required to make a Partner Loan unless such Partner has agreed in
writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the Partners
in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-l(b) and 1.704-2.
If the Partnership incurs nonrecourse deductions or partner nonrecourse deductions, or if there
is any change in the Partnerships minimum gain, as defined in such Regulations, the allocation
of Profits, Losses and items thereof to the Partners shall be modified in a reasonable manner
deemed necessary or advisable by the Partners, upon appropriate legal or tax advice, to comply with
such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority in
Interest of the Partners. The Partners shall devote such time and effort as is necessary for the
management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the Partnership
in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall coordinate
with the Partnerships accountants the preparation of tax information and tax returns relating to
the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge, hypothecation or
other disposition of a Partnership interest in violation of this Section 8 shall be void and shall
not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The expiration of the term of the Partnership as set forth herein, unless that term is
extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities and the
establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital contributions
and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered personally to
the Partner to whom the same is directed, or sent by regular, registered or certified mail, return
receipt requested, addressed as follows: if to the Partnership, to the Partnership at the address
set forth in Section 1.5 hereof, or to such other address as the Partnership may from time to time
specify by notice to the Partners in accordance with this Section 10.1, or, if to a Partner, to
such Partner at the address for such Partner set forth below the Partners name on Exhibit A, or to
such other address as the Partner may from time to time specify by notice to the Partnership in
accordance with this Section 10.1. Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date so delivered, if delivered personally or if sent by
regular mail, or as of the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, if sent by registered or certified mail, postage
and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that it
may have to maintain any action for partition with respect to any of the Partnerships property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All counterparts
shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended
from time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained for
such Partner in accordance with Code ' 704(b) and Regulations promulgated thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Majority in Interest of the Partners means Partners owning a simple majority of the
Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources,
less the portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt
payments, (3) contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and
any other Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment
adopted in accordance with Section 7 hereof. Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any Partnership
continuing the business of this Partnership in the event of dissolution as herein provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement. The
Partners Percentage Interests are set forth opposite their names on Exhibit A attached hereto.
Person means any individual, partnership, corporation, trust, limited liability
company or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Partnerships taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), adjusted as deemed necessary by the Partners to comply with Code Section
704(b) and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc. |
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ D. W. Slager
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By:
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/s/ D. W. Slager
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Its:
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Vice President, operations
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Its:
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President |
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
Allied Waste North America, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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99 |
% |
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Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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1 |
% |
exv3w580
Exhibit 3.580
CERTIFICATE OF FORMATION
JEFFERSON CITY LANDFILL, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Jefferson City Landfill, LLC.
2. Registered Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 21st day of November, 1997.
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Allied Waste North America, Inc., |
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a Delaware corporation,
Sole Member |
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By:
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/s/ Steven M. Helm
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Steven M. Helm, Vice President/Legal |
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exv3w581
Exhibit 3.581
OPERATING AGREEMENT OF
JEFFERSON CITY LANDFILL, LLC
This Operating Agreement is executed as of November 21, 1997, by Allied Waste North
America, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Jefferson City Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation
to be filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et. seg., as amended from time to time (or any corresponding
provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc., |
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a Delaware corporation |
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By:
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/s/ Henry L. Hirvela
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Its:
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Vice President |
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6
EXHIBIT A
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Initial |
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Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc.
15880 N. Greenway-Hayden Loop
Suite 100
Scottsdale, Arizona 85260
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$ |
100.00 |
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7
exv3w582
Exhibit 3.582
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Secretary of State |
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ARTICLES OF ORGANIZATION
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(R.S. 12:1301)
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Domestic Limited Liability Company
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Return to:
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Commercial Division |
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Enclose $75.00 filing fee
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P. O. Box 94125 |
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Make remittance payable to
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Baton Rouge, LA 70804-8125 |
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Secretary of State
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Phone (225) 925-4704 |
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Do not send cash
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Web Site: www.sos.louisiana.gov |
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STATE OF ARIZONA
Check one: þ Business o Nonprofit
PARISH/COUNTY OF MARICOPA
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The name of this limited liability company is : Jefferson
Parish Development Company, LLC |
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This company is formed for the purpose of: (check one) |
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Engaging in any lawful activity for which limited liability companies may be formed. |
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o |
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(use for limiting activity) |
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The duration of this limited liability company is : (may be
perpetual) perpetual |
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4.
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Other provisions:
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AL ATER |
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SECRETARY OF STATE |
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RECEIVED & FILED |
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DATE SEP 22 2005 |
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Signatures:
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/s/ Jo Lynn White
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Jo Lynn White, Authorized Representative |
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On
this 22nd day of September, 2005, before me personally appeared
Jo Lynn White, to me known to be the person described in and who
executed the foregoing instrument, and acknowledged that he/she
executed it as his/her
free act and deed.
NOTARY NAME MUST BE TYPED OR PRINTED WITH NOTARY#
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[ILLEGIBLE]
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Notary Public State of Arizona |
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[ILLEGIBLE] |
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[ILLEGIBLE] |
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[ILLEGIBLE] |
(See
instructions on back)
exv3w583
Exhibit 3.583
OPERATING AGREEMENT OF
JEFFERSON PARISH DEVELOPMENT COMPANY, LLC
This Operating Agreement is executed as of September 22, 2005, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Jefferson Parish Development Company, LLC. The
name of the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Louisiana law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Louisiana shall
be CT Corporation System, 8550 United Plaza Blvd, Baton Rouge, Louisiana, 70809, County of East
Baton Rouge. The registered office may be changed to any other place within the State of Louisiana
upon the consent of the Member. The Company may maintain a registered office in any state within
which it does business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Louisiana are CT Corporation System, 8550
United Plaza Blvd, Baton Rouge, Louisiana, 70809. The Companys agent for service of legal
process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Louisiana, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Louisiana. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit
A to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to
the Company.
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be
distributed to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits,
Losses and items thereof for each fiscal year of the Company shall be allocated to the Member in
full, disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning
the Company and its affairs shall be made or taken by the Member. Any party dealing with the
Company shall be permitted to rely absolutely on the signature of the Member as binding on the
Company, without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office
all accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under § 12:1335 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in § 12:1336 of the
Act. The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Louisiana Secretary of State or until a decree dissolving
the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefore, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the Louisiana Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every
covenant, term and provision of this Agreement shall be binding upon and inure to the benefit of
the Member and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Louisiana Law. The laws of the State of Louisiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Louisiana Limited Liability Company Act, as set forth in Title 12, § 12:1301,
et. seq., as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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President |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc.
15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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$ |
100.00 |
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exv3w584
Exhibit 3.584
ARTICLES OF INCORPORATION
OF
JETTER DISPOSAL, INC.
The undersigned acting as the Incorporator of a Corporation pursuant to the provisions
of the Iowa Business Corporation Act, being Chapter 490 of the 1997 Code of Iowa, does hereby adopt
the following Articles of Incorporation.
ARTICLE I.
The
name of the Corporation is JETTER DISPOSAL, INC.
ARTICLE II.
The Corporation shall have unlimited power to engage in and to do any lawful act
concerning any or all lawful businesses for which corporations may be organized under this Act.
ARTICLE III.
The authorized capital stock of this Corporation shall be Ten Thousand Dollars
($10,000.00) divided into One Hundred (100) shares of a par value of One Hundred Dollars ($100.00)
per share. No stock shall be transferred except in accordance with the provisions of the By-Laws
of this Corporation and subject to all restrictions contained therein. Any agreement between
Stockholders relating to the restraint of the sale of the stock may be filed with the Secretary of
the Corporation and shall be binding upon all stockholders and transferees subject to the
provisions of the By-Laws.
ARTICLE IV.
The address of the initial registered office in the State of Iowa is 926 2nd Ave. So.,
Clinton, IA 52732, and the name of its registered agent at such address is William C. Jetter, Jr.
ARTICLE V.
The number of Directors constituting the initial Board of Directors of this Corporation
is one, and the name and address
Page -2-
ARTICLES OF INCORPORATION OF JETTER DISPOSAL, INC.
of the person who is to serve as Director until the first annual meeting of the
shareholders, or until his successor is elected and shall qualify is:
William C. Jetter, Jr., 926 2nd Ave. So., Clinton, IA 52732 After the initial Board of
Directors, the Board shall consist of such number of Directors as shall be fixed and determined by
the By-Laws of the Corporation.
The Corporation shall operate under By-Laws adopted by the Board of Directors, and the Board
of Directors shall have power to adopt, alter, amend and repeal By-Laws, subject to control of the
stockholders. The stockholders may by act of a majority vote of the stockholders represented at
any annual or special meeting called for that purpose, alter, amend or repeal any or all By-Laws
and enact others. Said stockholders may by similar action, limit, or extend the then existing
power of the Board of Directors as to enactment, repeal or alteration of the By-Laws.
ARTICLE VI.
Annual meetings or special meetings of the stockholders may be held either within
or without the State of Iowa at such times and places as may be provided in the By-Laws.
ARTICLE VII.
Title to all property of the Corporation as well as all leases or interests in or contracts
for any property of the Corporation, whether the same be real, personal, or mixed, shall be taken
in the name of the Corporation, and all conveyances or other instruments pertaining to or affecting
the title to real estate shall be executed by the President and attested by the Secretary of this
Corporation.
In the absence, or inability, of the President or of the Secretary, or both, the Board of
Directors may authorize and direct any other officer or officers of the Corporation or any
Page -3-
ARTICLES OF INCORPORATION OF JETTER DISPOSAL, INC.
other person or persons who may be designated by the Board of Directors to execute
said instruments for and in behalf of the Corporation.
The conveyance or encumbrances of any real estate of the Corporation shall be executed only
upon the authority of the Board of Directors.
ARTICLE VIII.
This Corporation shall not have a Corporate Seal.
ARTICLE IX.
The name and address of the Incorporator is: William C. Jetter, Jr., 926 2nd Ave.,
Clinton, IA 52732
IN WITNESS WHEREOF, I have hereunto subscribed my name this 20th
day of February, 1998.
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/s/ William C. Jetter, Jr.
WILLIAM C. JETTER, JR.
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STATE OF IOWA
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SS: |
CLINTON COUNTY
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On this 20th day of February, 1998, before me, a Notary Public in
and for the said County and State, personally appeared William C. Jetter, Jr., being known to be
the identical person named in and who executed the foregoing instrument as Incorporator and whose
name is affixed thereto and acknowledged that he executed the same as his voluntary act and deed.
Made under my hand and seal of office the day and year last above written.
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/s/ J. Drew
Chambers
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NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE
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FILED |
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IOWA |
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SECRETARY OF STATE |
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2-24-1998 |
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3:34 PM |
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ARTICLES OF AMENDMENT TO THE
ARTICLES OF INCORPORATION
OF
JETTER DISPOSAL, INC.
Pursuant to the provisions of §496A.58 of the 1997 Code of Iowa, the undersigned
Corporation adopts the following Articles of Amendment to its Articles of Incorporation.
I.
The name of the Corporation is JETTER DISPOSAL, INC. The location of its principal place of
business is 926 2nd Ave. So., Clinton, Iowa 52732. The effective date of its Incorporation is
February 24, 1998.
II.
The following Amendment to the Articles of Incorporation was adopted by the Shareholders of the
Corporation on June 5, 1998 in the manner prescribed by the Iowa
Business Corporation Act:
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That
the first sentence of Article III is deleted and there is substituted in lieu thereof the following
sentence: |
ARTICLE III.
The authorized capital stock of this Corporation shall be Ten Million
Dollars ($10,000,000.00) divided into One Hundred Thousand (100,000) shares of a
par value of One Hundred Dollars ($100.00) per share.
III.
The number of shares of the Corporation outstanding at the time of the adoption of said
Amendment was 10 and the number of shares entitled to vote thereon was ten.
IV.
No outstanding shares were entitled to vote thereon as a class.
Page -2-
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
JETTER DISPOSAL, INC.
V.
The number of shares which voted for the Amendment was ten. No shares voted
against the Amendment.
Dated this 5th day of June, 1998.
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JETTER DISPOSAL, INC. |
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BY:
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/s/ William C. Jetter, Jr.,
William C. Jetter, Jr., President
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BY:
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/s/ William C. Jetter, Jr.,
William C. Jetter, Jr., Secretary
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STATE OF IOWA
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CLINTON COUNTY
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On this 5th day of June, 1998, before me, the undersigned, a Notary Public in and for
the State of Iowa, personally appeared William C. Jetter, Jr., to me personally known, who, being
by me duly sworn, did say that he is the President and Secretary of Jetter Disposal, Inc. executing
the within and foregoing instrument; that no seal has been procured by the said corporation; that
said instrument was signed on behalf of said corporation by authority of its Board of Directors;
and that the said William C. Jetter, Jr. as such officers acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation, by it and by him voluntarily
executed.
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/s/ J. Drew Chambers |
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NOTARY PUBLIC IN AND FOR SAID COUNTY AND STATE
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FILED
IOWA
SECRETARY OF STATE |
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exv3w585
Exhibit 3.585
AMENDED AND RESTATED BYLAWS
OF
JETTER DISPOSAL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3.
Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be given not
less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
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Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
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Meeting and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
4
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to
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time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors,
if there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person (a) did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, (b) with
respect to any criminal action or proceeding, had reasonable cause to
11
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Sections 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Sections 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity
of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w586
Exhibit 3.586
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 09:37 AM 11/16/2007 |
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FILED 09:36 AM 11/16/2007 |
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SRV 071230739 4458681 FILE |
STATE of DELAWARE
LIMITED LIABILITY COMPANY
CERTIFICATE of FORMATION
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First: The name of the limited liability company is KANDEL ENTERPRISES, LLC |
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Second: The address of its registered office in the State of Delaware is 40 E Division Street
Suite A in the City of Dover 19901. The name of its Registered agent at such address is PARACORP
INCORPORATED |
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Third: (Use this paragraph only if the company is to have a specific
effective date of dissolution: The latest date on which the limited liability
company is to dissolve is .) |
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Fourth: (Insert any other matters the members determine to include herein.) |
In Witness Whereof, the undersigned have executed this Certificate of Formation this 16 day of
November, 2007.
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By: |
/s/ Glenda Kay Hallett
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Authorized Person(s) |
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Name: |
Glenda Kay Hallett |
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Typed or Printed
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State of Delaware |
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Secretary of State |
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Division of Corporations |
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Delivered 09:08 PM 12/18/2007 |
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FILED 08:33 PM 12/18/2007 |
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SRV 071338968 4458681 FILE |
State of Delaware
Certificate of Amendment
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Name of Limited Liability Company: Kandel Enterprises, LLC |
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The Certificate of Formation of the limited liability company is hereby
amended as follows: |
The location of the Registered Office of this limited liability company within this
state be, and the same hereby is Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware, 19801.
The name of the Registered Agent therein and in charge thereof upon whom process
against this limited liability company may be served, is The Corporation Trust Company.
IN WITNESS WHEREOF, said limited liability company has caused this certificate to
be signed by an authorized person on December 18, 2007.
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By: |
/s/ Connie J. Gecich
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Authorized Person |
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exv3w587
Exhibit 3.587
AMENDED AND RESTATED
OPERATING AGREEMENT
OF KANDEL ENTERPRISES, LLC
This Amended and Restated Operating Agreement (the Agreement) of KANDEL ENTERPRISES, LLC
(the Company) is executed as of November 30, 2007, by ALLIED WASTE SERVICES OF NORTH AMERICA,
LLC, a Delaware limited liability company, the sole member of the Company (the Member), and
shall bind the Member, the Company, and any other person who may acquire any interest in the
Company. This Agreement shall supersede and replace the Companys Limited Liability Company
Agreement, dated November 16, 2007, in its entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is KANDEL ENTERPRISES, LLC. All
business of the Company shall be conducted in the Company name. The Company shall hold its property
in the name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Delaware shall be
Paracorp Incorporated, 40 E. Division Street, Suite A, Dover, Delaware 19901. The registered office
may be changed to any other place within the State of Delaware upon the consent of the Member. The
Company may maintain a registered office in any state within which it does business at any location
approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are Paracorp Incorporated, 40 E.
Division Street, Suite A, Dover, Delaware 19901. The Companys agent for service of legal process
may be changed upon the consent of the Member.
1.7 Certificate of Formation. The Companys Certificate of Formation was filed
November 16, 2007 with the Delaware Secretary of State (the Certificate of Formation). The Member
shall file any amendments to the Certificate of Formation deemed necessary to reflect amendments to
this Agreement that the Member adopts in accordance with the terms. Upon the approval of any
amendments, by the Member in accordance with this Agreement, the Member or
a designee of the Member shall be authorized to execute and file such instruments with the
appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the sole Member are set forth in Exhibit
A to this Agreement.
2.2 Contributions of Member. The Member has contributed to the Company cash or other
assets. The Member shall not be obligated to make additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The
2
President shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
3
4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1
Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The Members election to dissolve the Company;
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 18-802 of the Act.
6.2 Winding Up.
4
(a) General. Following the dissolution of the Company, the Company shall cease
to carry on its business, except insofar as may be necessary for the winding up of its
business, but the Companys separate existence shall continue until a certificate of
cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized
successor in interest) shall be responsible for overseeing the winding up and liquidation
of the Company and shall take full account of the Companys liabilities and assets upon
dissolution. Any assets not required to discharge any liabilities of the Company shall be
distributed to the Member. Upon the completion of the winding up, liquidation and
distribution of the assets, the Company shall be deemed terminated. The Company shall
comply with any applicable requirements of the Act pertaining to the winding up of the
affairs of the Company and the final distribution of its assets.
6.3 Certificate of Cancellation. When all debts, liabilities and obligations
of the Company have been paid and discharged or adequate provisions have been made therefor
and all of the remaining property and assets of the Company have been distributed to the
Member, the Member shall execute and file a certificate of cancellation with the Delaware
Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every
covenant, term and provision of this Agreement shall be binding upon and inure to the
benefit of the Member and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity or legality of the remainder of
this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be
deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of
the Person or Persons may require.
7.5 Governing Law. The laws of the State of Delaware shall govern the validity
of this Agreement, the construction of its terms and the interpretation of the rights and
duties of the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have
the meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code Ann.
Tit. 6, § 18-101, et seq., as amended from time to time (or any corresponding provisions of
succeeding law).
5
Agreement means this Operating Agreement, as amended from time to time.
Capital Contribution means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
Certificate of Formation has the meaning given that term in Section 1.7.
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person.
Member Loans has the meaning given that term in Section 2.3.
Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first above
written.
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ALLIED WASTE SERVICES OF NORTH AMERICA, LLC,
a Delaware limited liability company, its Sole
Member
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By: |
/s/ Donald W. Slager
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Name: |
Donald W. Slager |
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Title: |
President |
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6
EXHIBIT A
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Percentage |
Name and Address of Member |
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Interest |
Allied Waste Services of North America, LLC
18500 North Allied Way
Phoenix, AZ 85054
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100% |
7
exv3w588
Exhibit 3.588
Form BCA-2.10
(Rev. Jan. 1999)
Jesse White
Secretary of State
Department of Business Services
Springfield, IL 62756
http://www.sos.state.il.us
Payment must be made by certi-
fied check, cashiers check, Illi-
nois attorneys check, Illinois
C.P.A.s check or money order,
payable to Secretary of State.
ARTICLES OF INCORPORATION
This space for use by Secretary of State
FILED
FEB 19 2003
JESSE WHITE
SECRETARY OF STATE
SUBMIT IN DUPLICATE!
This space for use by
Secretary of State
Date 2-19-03
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Franchise Tax |
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$ |
25 |
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Filing Fee |
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$ |
75 |
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Approved: |
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$ |
100 |
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0030260541 |
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5382/0105 90 001 page 1 of 2
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2003-02-24 15:20:52
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1. |
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CORPORATE NAME: Kankakee Quarry, Inc.
(The corporate name must contain the word corporation, company, incorporated, limited or an
abbreviation thereof.) |
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2.
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Initial Registered Agent:
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C T Corporation System
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0030260541 |
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First Name
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Middle Initial
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Last Name
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Initial Registered Office:
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, 208 South LaSalle Street |
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Number
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Street
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Suite #
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Chicago
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IL Cook
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60604 |
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City
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County
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Zip Code
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3. |
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Purpose or purposes for which the corporation is organized:
(If not sufficient space to cover this point, add one or more sheets of this size.) |
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The purpose of the company is to conduct the business of solid waste management and disposal,
and to engage in any other business or activity permitted under Illinois Business
Corporation Act. |
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4. |
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Paragraph 1: Authorized Shares, Issued Shares and Consideration Received: |
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Par Value |
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Consideration to be |
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per Share |
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Proposed to be Issued |
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Received Therefor |
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Common |
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$ |
.01 |
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1,000 |
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1,000 |
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$ |
1,000 |
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TOTAL = $ 1,000 |
Paragraph 2: The preferences, qualifications, limitations, restrictions and special or relative
rights in respect of the shares of each class are:
(If not sufficient space to cover this point, add one or more sheets of this size.)
(over)
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5. OPTIONAL: |
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(a) |
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Number of directors constituting the initial
board of directors of the corporation: . |
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Names and addresses of the persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and qualify: |
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Name
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Residential Address
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City, State, ZIP |
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6. OPTIONAL:
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(a)
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It is estimated that the value of all property to be owned by the
corporation for the following year wherever located will be:
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$ |
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(b)
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It is estimated that the value of the property to be located
within
the State of Illinois during the following year will be:
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(c)
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It is estimated that the gross amount of business that will be
transacted by the corporation during the following year will be:
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(d)
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It is estimated that the gross amount of business that will be
transacted from places of business in the State of Illinois
during
the following year will be:
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$ |
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7. OPTIONAL: |
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OTHER PROVISIONS |
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Attach a separate sheet of this size for any other provision to be included in the Articles of
Incorporation, e.g., authorizing preemptive rights, denying cumulative voting, regulating
internal affairs, voting majority requirements, fixing a duration other than perpetual, etc. |
8. |
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NAME(S) & ADDRESS(ES) OF INCORPORATOR(S) |
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true.
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Dated
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February 18
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2003 |
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(Month & Day)
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Year |
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Signature and Name |
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Address |
1.
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/s/ W. E. Eggleston
Signature
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1.
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3003 N. Central Ave., Suite 2600
Street |
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W. E. Eggleston, Jr.
(Type or Print Name)
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Phoenix, AZ 85012
City/Town
State
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Signature
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(Type or Print Name)
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Signature
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(Signatures must be in BLACK INK on original document. Carbon copy, photocopy or
rubber stamp signatures may only be used on conformed copies.)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by its president or vice president and
verified by him, and attested by its secretary or assistant secretary.
FEE SCHEDULE
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The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50 per $1,000)
on the paid-in capital represented in this state, with a minimum of $25. |
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The filing fee is $75. |
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The minimum total due (franchise tax + filing fee) is $100.
(Applies when the Consideration to be Received as set forth in Item 4 does not exceed $16,667) |
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The Department of Business Services in Springfield will provide assistance in calculating the total fees if necessary.
Illinois Secretary of State
Springfield, IL 62756
Department of Business Services Telephone (217) 782-9522 or 782-9523 |
exv3w589
Exhibit 3.589
BYLAWS
OF
KANKAKEE QUARRY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, allowing for three (3) directors, the exact number of directors to be determined
from time to time by resolution adopted by the affirmative vote of a majority of the directors then
in office. A director shall hold office until the next Annual Meeting and until his successor shall
be
3
elected and shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Directors of the Corporation may be removed from the Board
of Directors, with or without cause, subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a
5
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3.
Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President, and any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have exercised and possessed
if present. The Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
6
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose
7
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of
8
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
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Section 5. Record Date. In order that the Corporation may determine the |
9
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as the same may be amended from time to time, if
any, may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
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Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
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Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership,
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limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
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Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
15
exv3w590
Exhibit 3.590
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ENDORSED
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FILED
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in the office of the Secretary of State
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of the State of California
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JUL-6 1989
MARCH FONG EU, Secretary of State
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ARTICLES OF INCORPORATION
OF
KELLER CANYON LANDFILL COMPANY
ONE: The name of this corporation is Keller Canyon Landfill Company.
TWO: The purpose of this corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of California other than the banking
business, the trust company business or the practice of a profession permitted to be incorporated
by the California Corporations Code.
THREE: The name of this corporations initial agent for service of process in the State of
California is:
The Prentice-Hall Corporation System, Inc.
FOUR: This corporation is authorized to issue one class of shares of stock which shall be
designated Common Stock. The total number of shares of Common Stock which this corporation is
authorized to issue is 1,000, each of which shall have a par value of one dollar.
FIVE: The liability of the directors of this corporation for monetary damages shall be eliminated
to the fullest extent permissible under California law.
SIX: This corporation is authorized to provide indemnification of agents (as defined in Section
317 of the Corporations Code) for breach of duty to the corporation and its stockholders through
bylaw provisions or through agreements with the agents, or both, in excess of the indemnification
otherwise permitted by Section 317 of the Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Corporations Code.
Date: July 6, 1989
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/s/ Kevin Lutz
Kevin Lutz , Incorporator
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exv3w591
Exhibit 3.591
AMENDED AND RESTATED BYLAWS
OF
KELLER CANYON LANDFILL COMPANY
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.
Annual Meetings. The Annual Meetings of Stockholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting, at which meetings the stockholders shall elect Directors in accordance with
Section 1 of Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such meeting not less than
ten (10) (unless a longer period is required by law) nor more than sixty (60) days (unless a longer
period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
2
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may
3
be removed from the Board of Directors, with or without cause, subject only to limitation provided
by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that
results from an increase in the number of directors may be filled by a majority of the Board
of Directors then in office, provided that a quorum is present, and any other vacancy occurring in
the Board of Directors may be filled by a majority of the directors then in office, even if less
than a quorum, or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
4
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract
5
or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
6
Board of Directors shall possess the same power as the President to sign
all contracts, certificates and other instruments of the Corporation which may be authorized by the
Board of Directors. The Chairman of the Board of Directors shall also perform such other duties and
may exercise such other powers as from time to time may be assigned to him by these Bylaws or by
the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President or
in the event of the inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation and to attest
the
7
affixing by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. The Board of Directors may delegate to any other
officer of the Corporation the power to choose such other officers and to prescribe their
respective duties and powers.
8
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action (unless a greater or lesser period is required by
applicable state law). A determination of stockholders of record entitled to notice of or
9
to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper purpose, and the
Board of Directors, in its absolute discretion, may modify or abolish any such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the
11
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of
the Corporation as a director, officer, employee or agent. The provisions of this Section 4 of
this Article VIII shall not be deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
12
determination
in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, limited liability company, partnership, joint
venture, trust, employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not
the Corporation would have the power or the obligation to indemnify him against such liability
under the provisions of this Article VIII.
13
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
14
exv3w592
Exhibit 3.592
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FILED |
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IN THE OFFICE OF THE CORPORATION |
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COMMISSIONER OF THE STATE OF OREGON |
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DEC 26 1980 |
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FRANK J. HEALY |
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CORPORATION COMMISSIONER |
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No. B.C. 1
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Submit in duplicate |
8/77
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Include License and Filing Fees** |
One or more natural persons of the age of 18 years or more may incorporate a business
corporation by signing,
verifying and delivering Articles of Incorporation in duplicate to the Corporation
Commissioner. The procedure for the
formation of business corporations is set forth in ORS 57.306 through 57.331. See ORS 57.311
for the content of Articles of
Incorporation.
Articles of Incorporation
The undersigned natural person(s) of the age of eighteen years or more, acting as
incorporators under the Oregon Business Corporation Act, adopt the following Articles of
Incorporation:
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ARTICLE I The name of this corporation is
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Keller Drop Box, Inc. |
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(The corporate name must contain the word Corporation, Company, Incorporated or Limited
or an abbreviation of one of such words.)
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and its duration shall be
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perpetual. |
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ARTICLE II The purpose or purposes for which the corporation is organized are:
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1. |
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Solid Waste Collection; and |
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2. |
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Any lawful activity for which corporations may be formed under ORS Chapter 57. |
(It is not necessary to set forth in the Articles any of the corporate powers enumerated in ORS
57.030 and 57.035. It is sufficient to state, either alone or with other purposes, That the
corporation may engage in any lawful activity for which corporations may be organized under ORS
Chapter 57; however, it is desirable to state the primary purpose of the corporation in
conjunction with such statement.)
ARTICLE III The aggregate number of shares which the corporation shall have authority to
issue is 5,000 Shares $1.00 par value common.
(Insert statement as to par value of such shares or a statement that all of such
shares are to be without par value. If here is more than one class of stock, insert a
statement as to the preference, limitations and relative rights of each class.)
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ARTICLE IV The address of the initial registered office of the corporation is
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1330 The Bank of California Tower, Portland, Oregon 97205
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(Street and Number)
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(NOTEA P.O. Box No is not acceptable)
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(City and State)
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(Zip Code) |
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and the name of its initial registered agent at such address is
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Lee Davis Kell |
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ARTICLE V The number of directors constituting the initial board of directors of
the corporation is one, and the names and addresses of the persons who are to serve as
directors until the first annual meeting of shareholders or until their successors are elected
and shall qualify are:
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Name |
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Address |
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(NOTE: A P.O. BOX NUMBER IS NOT ACCEPTABLE) |
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(Street and Number) |
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(City and State) |
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(Zip) |
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Lee Davis Kell |
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1330 The Bank of California Tower Portland, Oregon 97205 |
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ARTICLE VI The name and address of each incorporator is:
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Name |
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Address |
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(NOTE: A P.O. BOX NUMBER IS NOT ACCEPTABLE) |
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(Street and Number) |
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(City and State) |
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(Zip) |
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Nancy R. Carnemolla |
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1330 The Bank of California Tower Portland, Oregon 97205 |
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ARTICLE VII (Provisions for regulation of internal affairs of the corporation as may be
appropriate.)
See Attached.
We, the undersigned incorporators, declare under penalties of perjury that we have
examined the foregoing and to the best of our knowledge and belief, it is true, correct and
complete.
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/s/ Nancy R. Carnemolla |
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Nancy R. Carnemolla |
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Dated December 24, 1980.
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** |
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Submit articles in duplicate original with filing and license fees as listed below.
Duplicate original means both copies MUST have original signatures.
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If authorized |
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But do not |
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Filing |
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License |
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Total |
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shares exceed |
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exceed |
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Fee |
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Fee |
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Fees |
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$ |
0 |
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$ |
5,000 |
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$ |
10 |
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$ |
10 |
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$ |
20 |
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5,000 |
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10,000 |
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15 |
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15 |
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30 |
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10.000 |
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25,000 |
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20 |
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20 |
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40 |
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25,000 |
|
|
|
50,000 |
|
|
|
30 |
|
|
|
30 |
|
|
|
60 |
|
|
|
|
50,000 |
|
|
|
100,000 |
|
|
|
50 |
|
|
|
50 |
|
|
|
100 |
|
|
|
|
100,000 |
|
|
|
250,000 |
|
|
|
75 |
|
|
|
75 |
|
|
|
150 |
|
|
|
|
250,000 |
|
|
|
500,000 |
|
|
|
100 |
|
|
|
100 |
|
|
|
200 |
|
|
|
|
500,000 |
|
|
|
1,000,000 |
|
|
|
125 |
|
|
|
125 |
|
|
|
250 |
|
If the authorized shares exceed $1,000,000, a $200 license fee and a $200 filing
feetotaling $400.
To determine the amount of organization fee payable by a corporation having stock
without par value, but for no other purpose, such shares of stock shall be deemed
equivalent to shares having a par value of $10 each.
File with Corporation Commissioner, Commerce Building, 158 12th Street N.E., Salem,
Oregon 97310.
ARTICLE VII
At all times each holder of common stock of the Corporation shall be entitled to one vote for each
share of such stock standing in his name on the books of the Corporation.
At all elections of
directors of the Corporation, each holder of
common stock shall be entitled to as many votes as shall equal the number of votes which (except
for this pro-vision) he would then be entitled to cast for the election of directors with respect
to his shares multiplied by the number of directors upon whose election he is then entitled to
vote, and he may cast all of such votes for a single candidate or may distribute them among some or
all of the candidates, as he may see fit.
VOID
WITHOUT WATERMARK OR IF ALTERED OR ERASED
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FILED |
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AUG 23 1999 |
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SECRETARY OF STATE |
ARTICLES OF AMENDMENT
TO ARTICLES OF INCORPORATION OF
KELLER DROP BOX, INC.
1. The name of the corporation is Keller Drop Box, Inc.
2. The amendments adopted to the articles of incorporation are as follows, to add
the following articles to the articles of incorporation:
ARTICLE VII. ELIMINATION OF LIABILITY
A. To the fullest extent permitted by law, no director of the corporation
shall be personally liable to the corporation or its shareholders for monetary
damages for conduct as a director, except that this provision shall not
eliminate or limit the liability of a director for any of the following:
1. Any act or omission occurring before the date this provision
becomes effective;
2. Any breach of the directors duty of loyalty to the corporation
or its shareholders;
3. Acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
4. Any distribution to shareholders that is unlawful under the Oregon
Business Corporation Act or successor statute; or
5. Any transaction from which the director derived an improper
personal benefit.
B. Without limiting the generality of the foregoing, if the provisions of
applicable law are further amended at any time, and from time to time, to authorize
corporate action further eliminating the personal liability of directors and
officers of the corporation, the liability of directors and officers of the
corporation shall be eliminated or limited to the fullest extent permitted by
applicable law, as so amended.
C. No amendment to or repeal of this Article VII, or adoption of any
provision of these Articles of Incorporation inconsistent with this Article VII, or
a change in the law, shall adversely affect any elimination or limitation of
liability, or other right or protection, that is based upon this Article VII and
pertains to any act, conduct, omission, or circumstance that occurred or existed before the
amendment, repeal, adoption, or change. No change in the law shall reduce or eliminate the
rights and protections set forth in this Article VII unless the change in law specifically
requires the reduction or elimination. No amendment to or repeal of this Article VII shall
apply to or have any effect on the liability or alleged liability of any director or officer
of the corporation for or with respect to any acts or omissions before the amendment or
repeal.
ARTICLE VIII. INDEMNIFICATION
D. The corporation shall indemnify, to the fullest extent permitted by law, any person
who is made or threatened to be made a party to, witness in, or otherwise involved in, any
action, suit, or proceeding, whether civil, criminal, administrative, investigative, or
otherwise (including any action, suit, or proceeding by or in the right of the corporation)
by reason of the fact that the person is or was a director or officer of the corporation or
any of its subsidiaries, or a fiduciary within the meaning of the Employee Retirement Income
Security Act of 1974 with respect to any employee benefit plan of the corporation or any of
its subsidiaries, or served or serves at the request of the corporation as a director or
officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership,
joint venture, trust, or other enterprise. Any indemnification provided pursuant to this
Article VIII shall not be exclusive of any rights to which the person indemnified may
otherwise be entitled under any provision of these Articles of Incorporation, the Bylaws,
agreement, statute, policy of insurance, or otherwise.
E. Indemnification provided under this Article VIII shall continue to cover any
director or officer after the person ceases to serve in that capacity and shall enure to the
benefit of the persons heirs, personal representatives, and administrators.
F. The right to indemnification conferred by this Article VIII shall be considered a
contract right between the corporation and the person entitled to indemnity under this
Article VIII.
G. In addition to any rights set forth above in this Article VIII, the corporation
shall advance all reasonable expenses incurred by a director or officer who on behalf of the
corporation is party to a proceeding, in advance of the proceeding to the fullest extent
required or authorized under the law.
3. The date each amendment was adopted is 8/18, 1999.
Page 2 ARTICLES OF AMENDMENT
4. The amendments were approved by the shareholders. Eight hundred shares of the corporation
are outstanding, 800 votes are entitled to be cast on the amendments, 800 votes were cast for the
amendments, and no votes were cast against the amendments.
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Keller Drop Box, Inc.
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By: |
/s/ Gary A. Barton
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Gary A. Barton, Vice President |
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Page 3 ARTICLES OF AMENDMENT
exv3w593
Exhibit 3.593
AMENDED AND RESTATED BYLAWS
OF
KELLER DROP BOX, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the state of incorporation, as the Board of Directors may
from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect
Directors in accordance with Section 1 of Article III of these Bylaws, and transact such other
business as may properly be brought before the meeting. Written notice of the Annual Meeting
stating the place, date and hour of the meeting shall be given to each stockholder entitled to
vote at such meeting not less than ten (10) (unless a longer period is required by law) nor more
than sixty (60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten
(10) (unless a longer period is required by law) nor more than sixty (60) days (unless a
longer period is required by law) before the date of the meeting to each stockholder entitled to
vote at such meeting. Business transacted at all Special Meetings shall be confined to the objects
stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles
of Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in
his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders,
the Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of
Directors. The Corporations Secretary shall act as secretary of each meeting of the stockholders;
in the Secretarys absence, the chairman of the meeting may appoint any person (whether a
stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his
part, and subject to any state law restrictions or requirements, the chairman of a meeting shall,
among other things, have absolute authority to fix the period of time allowed for the registration
of stockholders and the filing of proxies, to determine the order of business to be conducted at
such meeting and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to
be taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his
3
successor shall be elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Directors of the Corporation may be removed
from the Board of Directors, with or without cause, subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
4
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law,
the Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation
for their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the
5
disinterested directors, even though the disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if
6
present. The Board of Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5.
President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his
absence or in the event of his inability or refusal to act (and if there be no Chairman of the
Board of Directors), the Executive Vice President, or if there is no Executive Vice President, the
Vice President or the Vice Presidents if there are more than one (in the order designated by the
Board of Directors) shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision
7
he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there is no
Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there is one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as
8
shall be satisfactory to the Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property of whatever kind
in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time may be assigned to
them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar other than the
Corporation or its employee, any other signature on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
9
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5.
Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other
Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII,
the Corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
11
with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
the person (a) did not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, (b) with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
12
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant to this Article
VIII shall
13
not be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII
but whom the Corporation has the power or obligation to indemnify under the provisions of the
applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall
not be obligated to indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may,
to the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w594
Exhibit 3.594
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 04:00 PM 12/12/2001 |
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010636964 3467827 |
CERTIFICATE OF LIMITED PARTNERSHIP
OF
KERRVILLE LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The
name of the limited partnership is Kerrville Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the
Partnerships registered agent for service of process in the State of Delaware at such address is
The Corporation Trust Company.
III. The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Kerrville Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, |
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its General Partner |
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Title:
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Secretary |
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exv3w595
Exhibit 3.595
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
KERRVILLE LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Kerrville Landfill TX, LP (the
First Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Kerrville Landfill TX, LP (the Limited Partnership) was formed as a Delaware limited
partnership pursuant to that certain Certificate of Limited Partnership filed with the Delaware
Secretary of State on December 12, 2001, and the related Agreement of Limited Partnership of
Kerrville Landfill TX, LP, dated as of December 12, 2001 (the Agreement) between AWLH and BFI
Waste Systems of North America, Inc., a Delaware corporation (BFINA). Unless specifically
defined herein, capitalized terms appearing in this First Amendment shall have the meanings
given those terms in the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the Partnership to
AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited partner
of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of BFINAs interest in the Partnership to
AWSH and (b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First
Amendment, all terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
General Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc.,
a Delaware corporation
Limited Partner
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
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Allied Waste Systems Holdings, Inc.
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99 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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TOTAL |
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100 |
% |
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-3-
AGREEMENT OF LIMITED PARTNERSHIP OF
KERRVILLE LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and
between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and
BFI WASTE SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the
following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Kerrville Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General
Partner files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity
until the Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set
forth on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership
the cash or other assets set forth in Exhibit A to this Agreement. In conjunction with
such contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except upon
the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in
Section 1.4, in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or renewals
of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner
as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons
as officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of the
Partnership will be entitled to such compensation for their services as the General Partner may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of
the Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office
all accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in
the Partnership by operation of law and without violation of Section 8 hereof (or pursuant
to a Transfer that the Partnership is required to recognize notwithstanding any contrary provisions
of this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be treated
as the transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the
Partnership has no General Partner, any Limited Partner may nominate one or more Persons for
election as General Partner, which Person or Persons shall have the right and the power to continue
the Partnership and its business without dissolution. The election of a new General Partner shall
require the unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and its
business without dissolution pursuant to Section 9.2 hereof in the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor
General Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-appointed trustee if there be no General Partner) shall take full account of the
Partnerships liabilities and Partnerships property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other than
those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the Partners,
a certificate of cancellation shall be executed and filed by the General Partner with the Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as
the Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every
covenant, term, and provision of this Agreement shall be binding upon and inure to the benefit of
the Partners and their respective heirs, legatees, legal representatives, successors, transferees
and assigns; provided that this Section 11.2 shall not be deemed (a) to authorize
any Transfer not otherwise permitted under this Agreement, (b) to confer upon the assignee of a
Partners interest any rights not specifically granted under this Agreement, or (c) to supersede or
modify in any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
8
12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms of
this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
9
12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
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Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White |
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White
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Its:
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Secretary
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Its:
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Secretary |
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10
EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Limited Partner:
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$ |
990.00 |
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99 |
% |
BFI Waste Systems of North America,
Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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11
exv3w596
Exhibit 3.596
FIRST AMENDMENT TO PARTNERSHIP AGREEMENT OF
KEY WASTE INDIANA PARTNERSHIP
This First Amendment to Partnership Agreement of Key Waste Indiana Partnership (the First
Amendment) is entered into effective as of August 19, 1998, by and between Allied Waste North
America, Inc., a Delaware corporation (AWNA) and Allied Waste Landfill Holdings, Inc., a
Delaware corporation (AWLH)(collectively, the Partners).
RECITALS
A. Key Waste Indiana Partnership (the Partnership) was formed as an Indiana general
partnership pursuant to that certain Partnership Agreement of Key Waste Indiana Partnership, dated
as of December 31, 1997 (the Agreement) between Allied Waste Industries of Plymouth, Inc., an
Indiana corporation (AWIP) and AWLH. Unless specifically defined herein, capitalized terms
appearing in this First Amendment shall have the meanings given those terms in the Agreement.
B. Pursuant to an Agreement and Plan of Merger between AWIP and AWNA, among others, dated
August 14, 1998, AWEP merged with and into AWNA, resulting in a transfer by operation of law of
AWIPs interest in the Partnership to AWNA.
C. The Partners desire to acknowledge the merger and the admission of AWNA as a substituted
partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of AWIPs interest in the Partnership to
AWNA and (b) the admission of AWNA as a substituted partner.
2. Acceptance. AWNA hereby acknowledges the assumption of all of AWIPs
responsibilities and obligations with respect to the Partnership, and agrees to be bound by the
provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First
Amendment, all terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste North America, Inc.,
a Delaware corporation
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By: |
/s/ D. W. Slager
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D. W. Slager, Vice President |
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
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By: |
/s/ D. W. Slager
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D. W. Slager, President |
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-2-
EXHIBIT A
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Percentage |
Names and Addresses of Partners |
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Interest |
Allied Waste North America, Inc.
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99 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc.
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1 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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TOTALS |
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100 |
% |
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-3-
PARTNERSHIP AGREEMENT
OF
KEY WASTE INDIANA PARTNERSHIP
This Partnership Agreement is entered into as of December 31, 1997, between Allied Waste
Industries of Plymouth, Inc., an Indiana corporation and Allied Waste Landfill Holdings, Inc., a
Delaware corporation, each individually referred to herein as a Partner, and collectively as
Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Key Waste Indiana Partnership. The name of
the Partnership may be changed upon the consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880 North
Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050,
unless the Partnership is dissolved earlier as set forth in this Agreement, or is continued by the
Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described in
Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to the
Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of such Partners Capital Account without
the written consent of the other Partner. Under circumstances requiring a return of capital, no
Partner shall have the right to receive property other than cash, except as may be specifically
provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of the
Partners. No Partner shall be required to make a Partner Loan unless such Partner has agreed in
writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the Partners
in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-l(b) and
1.704-2. If the Partnership incurs nonrecourse deductions or partner nonrecourse
deductions, or if there is any change in the Partnerships minimum gain, as defined in such
Regulations, the allocation of Profits, Losses and items thereof to the Partners shall be modified
in a reasonable manner deemed necessary or advisable by the Partners, upon appropriate legal or
tax advice, to comply with such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to
the conduct and management of the Partnerships business and affairs shall be made by a Majority in
Interest of the Partners. The Partners shall devote such time and effort as is necessary for the
management of the Company and the conduct of its business, but shall not be required to devote
their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the Partnership
in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall coordinate
with the Partnerships accountants the preparation of tax information and tax returns relating to
the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose of
all or any part of its interest in the Partnership without first obtaining the written consent of
all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge, hypothecation or
other disposition of a Partnership interest in violation of this Section 8 shall be void and shall
not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The expiration of the term of the Partnership as set forth herein, unless that term is
extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period
of liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities and the
establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital contributions
and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement shall be in writing and shall be delivered personally to
the Partner to whom the same is directed, or sent by regular, registered or certified mail, return
receipt requested, addressed as follows: if to the Partnership, to the Partnership at the address
set forth in Section 1.5 hereof, or to such other address as the Partnership may from time to time
specify by notice to the Partners in accordance with this Section 10.1, or, if to a Partner, to
such Partner at the address for such Partner set forth below the Partners name on Exhibit A, or to
such other address as the Partner may from time to time specify by notice to the Partnership in
accordance with this Section 10.1. Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date so delivered, if delivered personally or if sent by
regular mail, or as of the date on which the same was deposited in a regularly maintained
receptacle for the deposit of United States mail, if sent by registered or certified mail, postage
and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
10.5 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that
it may have to maintain any action for partition with respect to any of the Partnerships property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended from
time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained for such
Partner in accordance with Code § 704(b) and Regulations promulgated thereunder.
Code
means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Majority in Interest of the Partners means Partners owning a simple majority of the
Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less the
portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt payments,
(3) contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and any other
Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment adopted in
accordance with Section 7 hereof. Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any Partnership
continuing the business of this Partnership in the event of dissolution as herein provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement.
The Partners Percentage Interests are set forth opposite their names on Exhibit A attached
hereto.
Person means any individual, partnership, corporation, trust, limited liability company or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Partnerships taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), adjusted as deemed necessary by the Partners to comply with Code Section
704(b)
and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all parties. All exhibits or schedules attached to this
Agreement are incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste Industries of Plymouth, Inc. |
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Allied Waste Landfill Holdings, Inc., |
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an Indiana corporation |
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a Delaware corporation |
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By:
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/s/ D. W. Slager |
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By: |
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/s/ D. W. Slager |
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Its:
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Executive Vice President
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Its:
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President |
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
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Allied Waste Industries of Plymouth, Inc. |
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All right, |
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99 |
% |
15880 North Greenway Hayden Loop
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title and interest |
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Suite 100
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in and to the |
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Scottsdale, Arizona 85260 |
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operating assets |
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and liabilities of |
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its waste |
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operations |
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Allied Waste Landfill Holdings, Inc. |
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$ |
386,770 |
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1 |
% |
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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exv3w597
Exhibit 3.597
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ENDORSED
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FILED
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in the office of the Secretary of State
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of the State of California
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MAY 13 1987
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MARCH FONG EU, Secretary of State
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ARTICLES OF INCORPORATION OF
OF
LA CANADA DISPOSAL, INC.
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The undersigned Incorporator hereby executes, acknowledges, and files the following ARTICLES
OF INCORPORATION for the purpose of forming a corporation under the General Corporation Law of the
State of California. |
One: The name of the Corporation shall be:
LA CANADA DISPOSAL, INC.
Two: The purpose of the corporation is to engage in any lawful act or activity for which
a corporation may be organized under the General Corporation Law of California other than the
banking business, the trust company business or the practice of a profession permitted to be
incorporated by California Corporations Code;
Three: The name and address in this State of the Corporations initial agent for service of
process in accordance with Subdivision (b) of Section 1502 of the General Corporation Law is:
Richard Goodwin
3712 Berwick Drive
La Canada, CA 91011
Four: The corporation is authorized to issue only one class of shares, and the total
number of shares which the Corporation is authorized to issue is ONE HUNDRED (100).
IN WITNESS WHEREOF, the undersigned incorporator has executed the foregoing ARTICLES
OF INCORPORATION on the [ILLEGIBLE] day of May, 1987.
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/s/ Richard Goodwin
Richard Goodwin, Incorporator
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The undersigned declares that he is the person who executed the foregoing ARTICLES
OF INCORPORATION and that such instrument is the act and deed of the undersigned. |
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/s/ Richard Goodwin
Richard Goodwin
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ENDORSED-FILED |
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in the office of the Secretary of State |
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of the State of California |
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Jun 08 2001 |
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BILL JONES, Secretary of State |
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
LA CAÑADA DISPOSAL, INC.
* * * * * * * *
We,
Michael Goodwin, the President and Cynthia Goodwin, the Secretary of La Cañada Disposal,
Inc., a corporation duly organized and existing under the laws of the State of California, do
hereby certify that:
1. They are the President and the Secretary, respectively, of La Cañada Disposal, Inc., a
California corporation.
2. Article One of the Articles of Incorporation of this corporation is amended in its
entirety to read as follows:
One: The name of the Corporation shall be:
La Cañada Disposal Company, Inc.
3. The foregoing amendment to the Articles of Incorporation has been approved by the board of
directors.
4. The foregoing amendment of Articles of Incorporation has been duly adopted by the required
vote of the shareholders in accordance with Section 902, of the California Corporations Code. The
total number of outstanding shares of the corporation is 45. All 45 shares voted in favor of the
amendment, which exceeded the vote required to approve said amendment.
Each of the undersigned declares under penalty of perjury that the statements contained in
the foregoing certificate are true of their own knowledge.
Executed
at [ILLEGIBLE] on 6/5, 2001.
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/s/ Michael Goodwin
Michael Goodwin, President
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/s/ Cynthia Goodwin
Cynthia Goodwin, Secretary
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exv3w598
Exhibit 3.598
AMENDED AND RESTATED BYLAWS
OF
LA CAÑADA DISPOSAL COMPANY, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual
3
Meeting
and until his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
4
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or
5
committee, in good faith, authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to
6
time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and
7
if there is no Assistant Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there is one, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation,
8
retirement or removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
9
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of
10
the Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to
11
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as
12
used in this Section 4 of this Article VIII shall mean any other corporation or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
13
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w599
Exhibit 3.599
PARTNERSHIP AGREEMENT
OF
LAKE COUNTY C & D DEVELOPMENT PARTNERSHIP
This Partnership Agreement is entered into as of October 5, 2000, between Allied Waste North
America, Inc., a Delaware corporation, and Allied Waste Landfill Holdings, Inc., a Delaware
corporation, each individually referred to herein as a Partner, and collectively as Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have
the meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Lake County C & D Development Partnership,
an Indiana general partnership. The name of the Partnership may be changed upon the Majority of
Interest of the Partners. The Partnership may do business under any other name as determined by a
Majority in Interest of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning hauling operations, and to engage in
any other activity permitted under Indiana law and the laws of any jurisdiction in which the
Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 15880
North Greenway Hayden Loop, Suite 100, Scottsdale, Arizona 85260, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until the Partnership is
dissolved as set forth in this Agreement.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each
Partner are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described
in Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to
the Partnership, except upon the written agreement of all Partners.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any capital contributions or any portion of such Partners Capital Account without
the written consent of the other Partner. Under circumstances requiring a return of capital, no
Partner shall have the right to receive property other than cash, except as may be specifically
provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or drawing
with respect to such Partners capital contributions or Capital Account or for services rendered
for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require the Partners to solicit capital contributions from any Partner or to make any
capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from the
Partnership or terminate its interest therein without the written consent of the other Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (Partner Loans) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of the
Partners. No Partner shall be required to make a Partner Loan unless such Partner has agreed in
writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times as
may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set
forth in Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the
Partners in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations
Sections 1.704-1(b) and 1.704-2.
If the Partnership incurs nonrecourse deductions or partner nonrecourse deductions, or if there
is any change in the Partnerships minimum gain, as defined in such Regulations, the allocation
of Profits, Losses and items thereof to the Partners shall be modified in a reasonable manner
deemed necessary or advisable by the Partners, upon appropriate legal or tax advice, to comply with
such Regulations.
2
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions
relating to the conduct and management of the Partnerships business and affairs shall be made by a
Majority in Interest of the Partners. The Partners shall devote such time and effort as is
necessary for the management of the Company and the conduct of its business, but shall not be
required to devote their full time efforts to the Company.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind the Partnership
in any matter whatsoever affecting the Partnership.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions arising
out of and in connection with the conduct of the Partnerships business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners to
act as the tax matters partner pursuant to the Code, and the tax matters partner shall coordinate
with the Partnerships accountants the preparation of tax information and tax returns relating to
the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise dispose
of all or any part of its interest in the Partnership without first obtaining the written consent
of all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge,
hypothecation or other disposition of a Partnership interest in violation of this Section 8 shall
be void and shall not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The unanimous election of the Partners to dissolve the Partnership; or
3
(b) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take full
account of the Partnerships liabilities and property, and the Partnerships property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation, the business and affairs of the Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnerships property, to the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities and the
establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital contributions
and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted
to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Partner to whom the same is directed, or sent by regular, registered or certified
mail, return receipt requested, addressed as follows: if to the Partnership, to the Partnership at
the address set forth in Section 1.5 hereof, or to such other address as the Partnership may from
time to time specify by notice to the Partners in accordance with this Section 10.1, or, if to a
Partner, to such Partner at the address for such Partner set forth below the Partners name on
Exhibit A, or to such other address as the Partner may from time to time specify by notice to the
Partnership in accordance with this Section 10.1. Any such notice shall be deemed to be
delivered, given and received for all purposes as of the date so delivered, if delivered personally
or if sent by regular mail, or as of the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, if sent by registered or certified
mail, postage and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees, legal
representatives and permitted successors, transferees and assigns.
10.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
10.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
4
10.5 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity or legality of the remainder of this
Agreement.
10.6 Additional Documents. Each Partner, upon the request of the other Partner, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
10.9 Waiver of Action for Partition. Each Partner irrevocably waives any right that
it may have to maintain any action for partition with respect to any of the Partnerships property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All counterparts
shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
Act means the provisions of the Indiana Code applicable to partnerships, as amended from
time to time (or any corresponding provisions of succeeding law).
Agreement means this Partnership Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Account means, with respect to any Partner, a capital account maintained for such
Partner in accordance with Code § 704(b) and Regulations promulgated thereunder.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Majority in Interest of the Partners means Partners owning a simple majority of the
Percentage Interests in the Partnership held by all Partners.
Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less the
portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt payments,
(3)
5
contingencies, or (4) authorized Partnership investments or loans, all as reasonably
determined by the Partners.
Partner means any Person identified as a Partner on Exhibit A attached hereto and any other
Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment adopted in
accordance with Section 7 hereof. Partners means all such Persons.
Partner Loans has the meaning given that term in Section 2.5 hereof.
Partnership means the Partnership formed pursuant to this Agreement and any Partnership
continuing the business of this Partnership in the event of dissolution as herein provided.
Percentage Interest means the Partners interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement.
The Partners Percentage Interests are set forth opposite their names on Exhibit A attached
hereto.
Person means any individual, partnership, corporation, trust, limited liability company or
other entity.
Profits
and Losses mean, for each fiscal year or other period, an amount equal to the
Partnerships taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), adjusted as deemed necessary by the Partners to comply with Code
Section 704(b) and Regulations promulgated thereunder.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject matter
covered hereby. No supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
6
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first
above written.
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Allied Waste North America, Inc. |
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation |
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a Delaware corporation |
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By:
Its:
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/s/ Steven M. Heim
Vice President, Legal
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By:
Its:
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/s/ D. W. Slager
President
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EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Partners |
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Contribution |
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Interest |
Allied Waste North America, Inc. |
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$ |
990.00 |
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99 |
% |
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc. |
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$ |
10.00 |
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1 |
% |
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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exv3w600
Exhibit 3.600
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C 0448288
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FILED |
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9:33 AM |
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JAN 23 1998 |
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EFFECTIVE |
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ELAINE F MARSHALL |
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SECRETARY OF STATE |
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NORTH CAROLINA |
ARTICLES OF INCORPORATION
OF
LAKE NORMAN LANDFILL, INC.
The undersigned does hereby submit these Articles of Incorporation for the purpose of forming
a business corporation pursuant to the provisions Section 55-2-02 of the General Statutes of North
Carolina, and to that end does hereby set forth the following:
ARTICLE I
The name of the corporation is Lake Norman Landfill, Inc..
ARTICLE II
The classes of shares and the aggregate number of shares of each class which the corporation
shall have authority to issue are as follows:
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No. of |
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Shares |
Common |
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10,000 |
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ARTICLE III
The street name and mailing address of the initial registered office of the corporation are
11724 Downs Road, P.O. Box 866, Mecklenburg County, Pineville, North Carolina, 28134. The name of
the initial registered agent at such address is Christopher H. Barrett.
ARTICLE IV
The name and address of the incorporator are:
Nancy E. LeCroy
2500
Charlotte Plaza
Charlotte, NC 28244
ARTICLE V
To the fullest extent permitted by the North Carolina Business Corporation Act as it
exists or may hereafter be amended, no person who is serving or who has served as a director of the
Corporation shall be personally liable to the Corporation nor to any of its shareholders for
monetary damages for breach of duty as a director. No amendment or repeal of this Article, nor the
adoption of any provision to these Articles of Incorporation inconsistent with this Article, shall
eliminate or reduce the protection granted herein with respect to any matter that occurred prior to
such amendment, repeal or adoption.
IN WITNESS WHEREOF, the undersigned incorporator has hereunto set her hand and seal, this 19th
day of January, 1998.
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/s/ Nancy E. LeCroy
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Nancy E. LeCroy, as Incorporator |
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Drawn by, return to:
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza
Charlotte, NC 28244
Attn: Nancy E. LeCroy, Esq.
exv3w601
Exhibit 3.601
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE DIRECTORS OF
LAKE NORMAN LANDFILL, INC.
(North Carolina)
Pursuant to the provisions of § 55-8-21 of the North Carolina Business Corporation Act, the
undersigned persons, being all of the directors of LAKE NORMAN LANDFILL, INC., a North Carolina
corporation (the Corporation), hereby sign this instrument, or a counterpart hereof, to evidence
their consent to the resolutions set forth below with the same force and effect as if said
resolutions were adopted by unanimous vote at a duly called meeting of the Board of Directors:
RESOLVED, that the Amended and Restated Bylaws attached hereto as Exhibit A
be, and they hereby are, adopted as the Amended and Restated Bylaws of the
Corporation; and
FURTHER RESOLVED, that the Secretary be, and she hereby is, authorized to
execute the Certificate of Adoption set forth at the end of the Amended and
Restated Bylaws and is hereby directed to file a copy thereof in the minute book
of the Corporation.
IN WITNESS WHEREOF, the undersigned members of the Board of the Directors and the Sole Shareholder
of the Company have hereby signed their names to this Written Consent as of the 25th day
of September, 2000.
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DIRECTORS:
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/s/ Donald W. Slager
Donald W. Slager
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/s/ G. Thomas Rochford, Jr.
G. Thomas Rochford, Jr.
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AMENDED AND RESTATED BYLAWS
OF
LAKE NORMAN LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, often percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which
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place shall be specified in the notice of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation
who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than
twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
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quorum for the transaction of business, and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of
any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
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Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board meetings,
and shall receive such other compensation as maybe determined by the Board of Directors from time
to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation,
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who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
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Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
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Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
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and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time,
if any, may be declared by a decision of a majority of the entire Board of Directors at any regular
or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
11
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and year
of its organization. The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the
12
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this
Section 4 of this Article VIII
shall not be deemed to be exclusive or to
13
limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice of any application
for indemnification pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
14
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
15
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
16
exv3w602
Exhibit 3.602
Form BCA-2.10
(Rev. Jan. 1991)
Secretary of State
Department of Business Services
Springfield. IL 62756
Telephone (217) 782-6961
Payment must be made by
certified check, cashiers
check, Illinois attorneys
check, Illinois C.P.As check
or money order, payable to
Secretary of State.
ARTICLES OF INCORPORATION
FILED
JAN 21 1992
GEORGE H. RYAN
SECRETARY OF STATE
SUBMIT IN DUPLICATE!
This space for use by
Secretary of State
Date 1/21/92
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Franchise Tax |
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$ |
25.00 |
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Filing Fee |
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$ |
75.00 |
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100.00 |
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Approved:
/s/ [ILLEGIBLE] |
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PAID
JAN 22 1992
1. |
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CORPORATE NAME:
LandComp
Corporation /s/ [ILLEGIBLE] |
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(The corporate name must contain the word corporation, company, incorporated, limited
or an abbreviation thereof.) |
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2.
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Initial Registered Agent:
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Paul |
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DeGroot |
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First Name
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Middle Initial
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Last name |
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Initial Registered Office:
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28 W 270 Flanders Lane |
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Number
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Street
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Suite # |
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Winfield |
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60190 |
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DuPage |
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City
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Zip Code
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County |
44
3. |
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Purpose or purposes for which the corporation is organized: |
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(If not sufficient space to cover this point, add one or more sheets of this size.) |
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To engage in any lawful act or activity for which corporations may be organized under the Illinois
Business Corporation Act. |
21444231
21444232
4. |
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Paragraph 1: Authorized Shares, Issued Shares and Consideration Received: |
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Par Value |
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Number of Shares |
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Number of Shares |
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Consideration to be |
Class |
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per Share |
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Authorized |
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Proposed to be Issued |
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Received Therefor |
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Common |
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$NPV |
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100,000 |
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10,000 |
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$ |
10,000.00 |
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TOTAL
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$ |
10,000.00 |
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Paragraph 2: The preferences, qualifications, limitations, restrictions and special or
relative rights in respect of the shares
of each class are: |
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5668-547-2
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(over)
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RECORDING DESK
BOX 170 |
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5. OPTIONAL:
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(a)
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Number of directors constituting the initial board of directors of the
corporation:
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(b)
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Names and addresses of the persons who are to serve as
directors until the first annual meeting of shareholders or until their
successors are elected and qualify: |
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6. OPTIONAL:
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(a)
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It is estimated that the value of all
property to be owned by the corporation
for the following year wherever located
will be:
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$
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(b)
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It is estimated that the value of the
property to be located within the State of
Illinois during the following year will
be:
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$
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(c)
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It is estimated that the gross amount of
business that will be transacted by the
corporation during the following year will
be:
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$
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(d)
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It is estimated that the gross amount of
business that will be transacted from
places of business in the State of
Illinois during the following year will
be:
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$
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7. OPTIONAL: |
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OTHER PROVISIONS
Attach a separate sheet of this size for any other provision to be
included in the Articles of Incorporation, e.g., authorizing preemptive
rights, denying cumulative voting, regulating internal affairs, voting
majority requirements, fixing a duration other than perpetual, etc. |
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8. NAME(S) & ADDRESS(ES) OF INCORPORATOR(S) |
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true.
Dated January 17,
1992.
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Signature and Name
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Address |
1.
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/s/ Cary B. Edgar
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1. |
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1505 Three First National Plaza |
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Signature
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Street |
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Cary B. Edgar
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Chicago,
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Illinois |
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60602 |
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Signature
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3.
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3. |
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Signature
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(Signatures must be in ink on original document Carbon copy, photocopy or
rubber stamp signatures may only be used on conformed copies.)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by its President or Vice President
and verified by him, and attested by its Secretary or Assistant Secretary.
FEE SCHEDULE
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The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50
per $1,000) on the paid-in capital represented in this state, with a minimum of $25 and a maximum of $1,000,000. |
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21444231
21444232 |
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The filing fee is $75. |
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The minimum total due (franchise tax + filing fee) is $100. |
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(Applies when the Consideration to be Received as set forth in Item 4 does not exceed
$16,667) |
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The Department of Business Services in Springfield will provide assistance in
calculating the total fees if necessary. |
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Illinois Secretary of State
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Springfield, IL 62756 |
21444232 |
Department of Business Services
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Telephone (217) 782-6961 |
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C-162.1Z
exv3w603
Exhibit 3.603
AMENDED AND RESTATED BYLAWS
OF
LANDCOMP CORPORATION
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at
such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and outside of the state of incorporation, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting, at which meetings the stockholders shall elect Directors in
accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of
Incorporation, as the same may be amended from time to time, Special Meetings of Stockholders may
be called only by the Chairman of the Board, if there is one, the President, the Board of Directors
pursuant to a resolution adopted by a majority of the entire Board of Directors (whether or not
there exist any vacancies in previously authorized directorships at the time any such resolution is
presented to the Board of Directors for adoption) or by the owner or owners, at the time of such
call for a Special Meeting, of ten percent (10%), or more, of the issued and outstanding shares of
common stock of the Corporation. Written notice of a Special Meeting stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called shall be
given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days (unless a longer period is required by law) before the date of the meeting to each
stockholder entitled to vote at such meeting. Business transacted at all Special Meetings shall be
confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or
these Bylaws, as the same may be amended from time to time, (i) any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat, and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after eleven (11) months from its date, unless such proxy provides for and,
applicable state law allows for, a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days
(or any longer period required by law) before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting
2
during the whole time thereof, and may be inspected by any stockholder of the Corporation who
is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board
of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders
shall be called to order and thereafter chaired by the Chairman of the Board of Directors if there
is one; or, if not, or if the Chairman of the Board is absent or so requests, then by the
President; or if the Chairman of the Board and the President are unavailable, such other officer of
the Corporation or such stockholder as may be appointed by the Board of Directors. The
Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken
by the stockholders of the Corporation may be effected either at an Annual or Special Meeting of
the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of Directors then in
office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both
regular and special, either outside of or within the state of incorporation. Regular meetings of
the Board of Directors may be held without notice at such time and at such place as may from time
to time be determined by the Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there is one, the President or any two (2) directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile
or telegram, not less than twenty-four (24) hours before the date of the meeting, or on such
shorter notice as the person or persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at all
meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business, and the act of a majority of the directors present at any
4
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of
any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of
any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their
reasonable out-of-pocket expenses incurred in connection with their attendance at Board
5
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law,
no contract or transaction between the Corporation and one or more of its directors or officers,
or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee, in good faith, authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are
known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall, at a minimum, include a President and a Secretary. The Board of Directors, in
its discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who
shall hold their offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified, or until their
earlier
6
resignation or removal. Any vacancy occurring in any office of the Corporation shall be filled by
the Board of Directors. The salaries and any bonuses or other compensation of all officers of the
Corporation shall be fixed by the Board of Directors. No officer shall be prevented from receiving
a salary by reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or
any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors,
if there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of
Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in
the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall
7
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
8
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chairman of the Board of Directors, the President, any Vice President, if there
are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Treasurer. If required by
the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate signed, in the name of the Corporation (i) by the President or any
Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent
other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it
9
may be issued by the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation alleged to have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5.
Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action (unless a greater or lesser
period is required by applicable state law). A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
10
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to
such director, member of a committee or stockholder, at his address as it appears on the records
of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at
the time when the same shall be deposited in the United States mail. Unless otherwise limited by
applicable state law, written notice may also be given personally or by electronic facsimile,
telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate
of Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, as the same may be amended from time to time, if
any, may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the
Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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Section 5. Gender. All words used in any gender in these Bylaws shall extend to and
include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in
the Right of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
12
Section 3. Authorization of Indemnification. Any indemnification under this Article
VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in
the circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section 3 of
this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this
Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific
13
case under
Section 3 of this Article VIII nor the absence of any determination thereunder shall be
a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this
Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the
provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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Section 10. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the
extent authorized from time to time by the Board of Directors, provide rights to indemnification
and to the advancement of expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the Corporation.
15
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations
Certificate of Incorporation shall be deemed to refer to its articles or certificate of
incorporation and all and any amendments thereto as of any given time on file with the applicable
state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall
in all respects be considered senior and superior to these bylaws, with any inconsistency to be
resolved in favor of the Certificate or applicable state law, as the case may be, and the Bylaws
shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w604
Exhibit 3.604
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1919679 |
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INDORSED FILED |
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In the office of the Secretary of State |
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of the State of California |
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DEC 30 1994 |
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TONY MILLER. Acting Secretary of State |
ARTICLES OF INCORPORATION
OF
LATHROP SUNRISE SANITATION CORPORATION
ARTICLE I
The name of the Corporation is Lathrop Sunrise Sanitation Corporation.
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or activity for which a
corporation may be organized under the General Corporation Law of California other than the banking
business, the trust company business or the practice of a profession permitted to be incorporated
by the California Corporations Code.
ARTICLE III
The name and address in the State of California of the Corporations initial agent for service
of process are:
Gregory J. Basso
1145 Charter Way
Stockton, California 95206
ARTICLE IV
The total number of shares which the Corporation is authorized to issue is one million
(1,000,000), all of the same class, designated Common Stock.
1
ARTICLE V
The liability of the directors of the Corporation for monetary damages shall be eliminated to
the fullest extent permissible under California law.
The Corporation is authorized to provide indemnification of agents (as defined in Section 317
of the California Corporations Code) through bylaw provisions, agreements with agents, vote of
shareholders or disinterested directors or otherwise, to the fullest extent permissible under
California law.
Any amendment, repeal or modification of any provision of this Article V shall not adversely
affect any right or protection of an agent of the Corporation existing at the time of such
amendment, repeal or modification.
IN WITNESS WHEREOF, the undersigned incorporator has executed these Articles of
Incorporation on December 29, 1994.
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/s/ Lynn Rooke
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Lynn Rooke, Incorporator |
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exv3w605
Exhibit 3.605
AMENDED AND RESTATED BYLAWS
OF
LATHROP SUNRISE SANITATION CORPORATION
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2.
Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors of the Corporation. The Board of Directors may designate directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required. The Board shall have the power at any
time to change the members of any such committee, to fill vacancies and to discharge any such
committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have
a financial interest, shall be void or voidable solely for this reason, or solely because the
director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
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Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action (unless a greater or
lesser period is required by applicable state law). A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from
time to time, if any, may be declared by a decision of a majority of the entire Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock of the Corporation. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors, in its absolute discretion,
may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
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Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
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ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
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exv3w606
Exhibit 3.606
CERTIFICATE OF FORMATION
LEE COUNTY LANDFILL SC, LLC
Pursuant
to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Lee County Landfill SC, LLC.
2. Registered Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN
WITNESS WHEREOF, the undersigned, an authorized person of the
Company, has caused this
Certificate of Formation to be duly executed as of the 4th day of June, 1997.
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Allied Waste North America, Inc.,
a Delaware corporation,
Member |
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By:
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/s/ Steven M. Helm |
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Its:
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Vice President, Legal |
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Steven M. Helm |
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exv3w607
Exhibit 3.607
OPERATING AGREEMENT OF LEE
COUNTY LANDFILL SC, LLC
This Operating Agreement is entered into as of June 5, 1997 by and between Allied Waste North
America, Inc., a Delaware corporation (N.A.) and Allied Waste Landfill Holdings, Inc., a
Delaware corporation (Holdings), each individually referred to herein as a Member, and
collectively as Members.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 9.12 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is LEE COUNTY LANDFILL SC, LLC. The name of the
Company may be changed upon the consent of the Members.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Members that the Company shall always be operated
in a manner consistent with its treatment as a partnership for federal and state income tax
purposes. It also is the intent of the Members that the Company not be operated or treated as a
partnership for purposes of Section 303 of the federal Bankruptcy Code. No Member shall take any
action inconsistent with the express intent of the parties hereto.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Members. The Company may maintain a registered office in any state within which it does business
at any location approved by the Members.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for
service of legal process may be changed upon the consent of the Members.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Members shall cause a Certificate of Formation
to be filed in the State of Delaware. The Members shall file any amendments to the Certificate of
Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Members
in accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Members in accordance with this Agreement, any Member or a designee of
a Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Members. The name, address and Percentage Interest of each Member are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Members. The Members shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. In conjunction with such contributions,
each Member shall receive a credit to its Capital Account equal to its Capital Contribution and a
Percentage Interest in the Company as set forth on Exhibit A.
2.3 Additional Capital Contributions. No Member shall be obligated to make additional
Capital Contributions to the Company, except upon the unanimous written consent of the Members.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Member
shall withdraw any Capital Contributions or any money or other property from the Company without
the written consent of the other Member. Under circumstances requiring a return of any Capital
Contributions, no Member shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Members at the time of such distribution.
(b) Liability of Members. No Member shall be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Members, and
except as otherwise provided by the Act or by any other applicable state law, the Members shall be
liable only to make their Capital Contributions as provided in Sections 2.2 and 2.3 hereof and
shall not be required to make any other Capital Contributions or loans to the Company. No Member
shall have any personal liability for the repayment of the Capital Contributions or loans of any
other Member.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require any Member to solicit or demand Capital Contributions from any other Member.
2
(d) Withdrawal. Except as provided in Section 7 hereof, no Member may voluntarily or
involuntarily withdraw from the Company or terminate its interest therein without the prior
written consent of the other Member. Any Member who withdraws from the Company in breach of this
Section 2.4(d):
(i) shall be treated as an assignee of a Members interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Company, on the same
basis as if the Member had not withdrawn, provided that any damages to the Company as a result of
such withdrawal shall be offset against amounts that would otherwise be distributed to such
Member. The right to share in distributions granted under this Section 2.4(d) shall be in lieu of
any right the withdrawn member may have under Section 18-604 of the Act to receive a distribution
or payment of the fair value of its interest in the Company.
2.5 Member Loans. Upon the approval of the Members, any Member may make loans
(Member Loans) to the Company, which shall bear interest and be repaid on such reasonable terms
and conditions as may be approved by the Members. No Member shall be required to make a Member
Loan unless such Member has agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Members in proportion to their Percentage Interests, at such times as may be determined by
the Members.
SECTION 4. ALLOCATIONS
4.1 Capital Accounts. A capital account shall be maintained for each Member in
accordance with the Regulations, under uniform policies established by the Members.
4.2 Profits and Losses. Unless otherwise required by Code Sections 704(b), 704(c) or
Treasury Regulations promulgated thereunder, all Profits, Losses and items thereof for each fiscal
year of the Partnership shall be allocated to the Partners in proportion to their Percentage
Interests.
3
SECTION 5. MANAGEMENT
5.1 General Management Structure. Unless specifically provided otherwise herein,
all decisions and actions concerning the Company and its affairs, and all matters requiring the
consent or approval of the Members under this Agreement, shall be made or taken upon concurrence
of a Majority in Interest of the Members. The Members shall devote such time and effort as is
necessary for the management of the Company and the conduct of its business, but shall not be
required to devote their full time efforts to the Company. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of any Member as binding on the Company,
without any duty of further inquiry regarding any approval of the Members required under this
Agreement.
5.2 Delegation of Authority to Officers. The Members may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions duly adopted by the Members
on behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Members deem appropriate. The officers of
the Company will be entitled to such compensation for their services as the Members may reasonably
determine from time to time.
5.3 Communications. The Members shall promptly advise and inform each other of any
transaction, notice, event or proposal directly relating to the management and operation of the
Company or to its assets which does or could materially affect, either adversely or favorably, the
Company, its business or its assets.
5.4 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Members and their officers and directors (the Indemnified Parties) from
and against all losses, claims, costs, liabilities and damages incurred by them by reason of any
act performed or omitted to be performed by them in connection with the business of the Company,
including attorneys fees incurred by them in connection with the defense of any action based on
any such act or omission; provided, however, no Indemnified Party shall be indemnified from any
liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. Each Member shall have the right, during
ordinary business hours, to inspect and copy such Company documents.
6.2 Tax Matters. N.A. is hereby appointed on behalf of the Company as the tax
matters partner under the Code.
SECTION 7. TRANSFER OF COMPANY INTERESTS; NEW MEMBERS
7.1 General. No Member shall sell, assign, pledge, hypothecate, encumber or
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otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Company without the consent of the other Member. A transferee of a Members
interest in the Company will be admitted as a Substituted Member only pursuant to Section 7.3
hereof. Any purported Transfer which does not comply with the provisions of this Section 7 shall
be void and shall not cause or constitute a dissolution of the Company.
7.2 Assignee of Members Interest. If, pursuant to a Transfer of an interest in the
Company by operation of law and without violation of Section 7.1 hereof (or pursuant to a
Transfer that the Company is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Company, but is not admitted as a
Substituted Member pursuant to Section 7.3 hereof, such Person:
(a) shall be treated as an assignee of a Members interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Company with respect to
the transferred interest, on the same basis as the transferring Member.
7.3 Substituted Members. No Person taking or acquiring, by whatever means, the
interest of any Member in the Company shall be admitted as a substituted Member in the
Company (a Substituted Member) without the written consent of all Members, which consent
may be withheld or granted in the sole and absolute discretion of each Member.
SECTION 8. DISSOLUTION AND TERMINATION
8.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The unanimous election by the Members to dissolve the Company;
(c) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any member (a
Dissolution Event) if within 90 days after the occurrence of any such Dissolution Event, a
Majority in Interest of the remaining Members affirmatively elects not to continue the Company; or
(d) The entry of a decree of dissolution under Section 18-802 of the Act.
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8.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 8.1
hereof, the remaining Member(s) may participate in the winding up of the Company as provided in
Section 18-803 of the Act. The Company shall cease to carry on its business, except insofar as may
be necessary for the winding up of its business, but the Companys separate existence shall
continue until a certificate of cancellation has been filed with the Delaware Secretary of State
or until a decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
remaining Member(s), or court-appointed trustee, if there are no remaining Members, shall take
full account of the Companys liabilities and assets, and such assets shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. During the period of liquidation,
the business and affairs of the Company shall continue to be governed by the provisions of this
Agreement, with the management of the Company continuing as provided in Section 5 hereof. The
proceeds from liquidation of the Companys property, to the extent sufficient therefor, shall be
applied and distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to Members who are creditors, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Members in satisfaction of any Member Loans which have not been satisfied
pursuant to Section 8.2(b)(i); and
(iii) To the Members in accordance with Section 3.
Notwithstanding anything in Section 4 hereof to the contrary, any Profits, Losses and items
thereof of the Company for the taxable year in which the liquidation of the Company occurs shall
be allocated among the Members so as to adjust the Capital Accounts of the Members as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in
this Section 8.
8.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all
of the remaining property and assets of the Company have been distributed to the Members, a
certificate of cancellation shall be executed and filed by the Members with the Delaware
Secretary of State.
SECTION 9. MISCELLANEOUS
9.1 Notices. Any notice, payment, demand or communication required or
permitted
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to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the Company,
to the Company at the address set forth in Section 1.6 hereof, or to such other address as the
Company may from time to time specify by notice to the Members in accordance with this Section
9.1, or, if to a Member, to such Member at the address for such Member set forth on Exhibit A to
this Agreement, or to such other address as the Member may from time to time specify by notice to
the Company and the other Members in accordance with this Section 9.1. Any such notice shall be
effective upon actual receipt thereof.
9.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Members
and their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 9.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Members interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 7 hereof.
9.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Member.
9.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
9.5
Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
9.6 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
9.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
9.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Members.
9.9 Waiver of Action for Partition. Each of the Members waives any right that it may
have to maintain any action for partition with respect to any of the Companys property.
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9.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
9.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions which any Member may take and all determinations which any Member may make pursuant to
this Agreement may be taken and made at the sole and absolute discretion of such Member.
9.12 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Account means the capital account maintained for each Member in accordance
with Section 4.1 hereof.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Majority in Interest of the Members means Members owning a simple majority of the
Percentage Interests in the Company held by all Members.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Members refers collectively to all
8
Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
reasonably determined by the Members.
Percentage Interest means a Members interest, expressed as a percentage, in
Profits, Losses, and distributions of the Company as provided for in this Agreement. The Members
Percentage Interests are set forth opposite their names on Exhibit A hereto.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Members to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
Substituted Member has the meaning given that term in Section 7.3 hereof.
Transfer has the meaning given that term in Section 7.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.,
a Delaware corporation |
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By:
Its:
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/s/ Steven M. Helm
VP Legal
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation |
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By:
Its:
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/s/ Steven M. Helm
Secretary
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9
EXHIBIT A
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Initial Capital |
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Percentage |
Names and Addresses of Members |
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Contribution |
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Interest |
Allied Waste North America, Inc. |
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$ |
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99 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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Allied Waste Landfill Holdings, Inc. |
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$ |
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1 |
% |
15880 North Greenway Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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10
exv3w608
Exhibit 3.608
Form BCA-2.10
(Rev. Jan. 1995)
George H. Ryan
Secretary of State
Department of Business Services
Springfield, IL 62756
Payment must be made by certified
check, cashiers check, Illinois
attorneys check, Illinois C.P.A.s
check or money order payable to
Secretary of State.
ARTICLES OF INCORPORATION
This space for use by Secretary of State
FILED
JAN 26 1996
GEORGE H. RYAN
SECRETARY OF STATE
SUBMIT IN DUPLICATE!
This space for use by
Secretary of State
Date 1-26-96
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Franchise Tax |
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$ |
25 |
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Filing Fee |
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$ |
75 |
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$ |
100 |
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Approved: /s/ [ILLEGIBLE] |
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1. |
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CORPORATE NAME: LEE COUNTY LANDFILL, INC. |
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(The corporate name must contain the word corporation, company, incorporated, limited or an
abbreviation thereof.) |
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2. |
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Initial Registered Agent: |
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C T CORPORATION SYSTEM |
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First Name:
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Middle Initial
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Last Name |
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Initial Registered Office: |
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c/o C T CORPORATION SYSTEM, 208 S. La Salle Street |
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Number
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Street
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Suite # |
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Chicago,
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IL 60604 |
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Cook |
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City
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Zip Code
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3. |
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Purpose or purposes for which the corporation is organized:
(If not sufficient space to cover this point, add one or more sheets of this size.) |
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The purpose of the corporation is to engage in any lawful act or activity for which
corporations may be organized to do business under the Illinois Business Corporation Act of 1983. |
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4. |
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Paragraph 1: Authorized Shares, Issued Shares and Consideration Received: |
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Par Value |
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Number of Shares |
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Number of Shares |
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Consideration to be |
Class |
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per Share |
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Authorized |
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Proposed to be Issued |
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Received Therefor |
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Common |
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$ |
0.01 |
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1,000 |
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1,000 |
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$ |
10.00 |
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TOTAL
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$ |
10.00 |
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Paragraph 2: The preferences, qualifications, limitations, restrictions and special or
relative rights in respect of the shares of each class are:
(If not sufficient space to cover this point, add one or more sheets of this size.)
96149483
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EXPEDITED |
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JAN 26 1996 |
(ILL. 548 12/27/94)
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(over)
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SECRETARY OF STATE |
C T System |
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5.
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OPTIONAL:
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(a)
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Number of directors constituting the initial board of directors of the
corporation:
________________ . |
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(b)
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Names and addresses of the persons who are to serve as directors until the first annual meeting
of shareholders or until their successors are elected and qualify: |
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Name
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Residential Address
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City, State, Zip |
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6.
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OPTIONAL
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(a)
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It is estimated that the value of all property to be owned by the
corporation for the following year wherever located will be:
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$ |
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(b)
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It is estimated that the value of the property to be located within
the State of Illinois during the following year will be:
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$ |
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(c)
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It is estimated that the gross amount of business that will be
transacted by the corporation during the following year will be:
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$ |
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(d)
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It is estimated that the gross amount of business that will be
transacted from places of business in the State of Illinois during
the following year will be:
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$ |
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7. |
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OPTIONAL: OTHER PROVISIONS |
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Attach a separate sheet of this size for any other provision to be included in the
Articles of Incorporation, e.g., authorizing preemptive rights, denying cumulative
voting, regulating internal affairs, voting majority requirements, fixing a duration
other than perpetual, etc. |
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8. |
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NAME(S) & ADDRESS(ES ) OF INCORPORATOR(S)
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The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the
statements made in the foregoing Articles of Incorporation are true.
Dated
January 25, 1996.
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Signature and Name |
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1.
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/s/ Mary Janiszewski |
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Signature |
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Mary Janiszewski |
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(Type of Print Name) |
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2. |
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Signature |
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(Type or Print Name) |
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3. |
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Signature |
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(Type or Print Name) |
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Address |
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1. |
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208 S. LaSalle St. |
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Street |
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Chicago
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IL
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60604 |
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City/Town
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2. |
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3. |
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(Signatures must be in BLACK INK on original document. Carbon copy, photocopy or
rubber stamp signatures may only be used on conformed copies.)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shall be by its president or vice president and
verified by him, and attested by its secretary or assistant secretary.
FEE SCHEDULE
96149483
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The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50 per $1,000)
on the paid-in capital represented in this state, with a minimum of $25. |
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The filing fee is $75. |
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The minimum total due (franchise tax + filing fee) is $100.
(Applies when the Consideration to be Received as set forth in Item 4 does not exceed $16,667) |
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The Department of Business Services in Springfield will provide assistance in calculating the
total fees if necessary. |
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Illinois Secretary of State
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Springfield, IL 62756 |
Department of Business Services
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Telephone (217) 782-9522 or 782-9523 |
exv3w609
Exhibit 3.609
BYLAWS OF
LEE COUNTY LANDFILL, INC.
ARTICLE 1
Offices
Section 1.1 The principal office of the Corporation shall be, until changed by the Board of
Directors, at 1229 North Bataan Road, Dixon, Illinois 61021. The Corporation may also have
offices and branch offices at such other places within and without the State of Illinois as the
Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE 2
Shareholders Meetings
Section 2.1 Place. Except as hereinafter provided, any annual or special meeting of
the shareholders shall be held at such place within or without the State of Illinois as may be
selected by the Board of Directors. If the Board of Directors fails to designate a place for the
meeting to be held, then the same shall be held at the principal business office of the
Corporation. Special meetings called for the purpose of removing directors shall be held at the
registered office or principal business office of the Corporation in the State of Illinois or in
the city or county in the State of Illinois in which the principal business office of the
Corporation is located.
Section 2.2 Date of Annual Meeting. The annual meeting of the shareholders shall be
held on the 30th day in the month of December in each year at such time as may be specified in
the notice of meeting. If the day fixed for the annual meeting shall be a holiday, such annual
meeting shall be held on the next business day.
Section 2.3 Special Meetings. Special meetings of the shareholders may be called at
any time by the Board of Directors.
Section 2.4 Notice of Shareholders Meetings, Annual or Special. Written or printed
notice of each meeting of shareholders shall be delivered or given either personally or by mail to
each shareholder of record entitled to vote at such meeting, not less than ten (10) nor more than
fifty (50) days before the date of the meeting. The notice shall specify the place, day and time of
the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is
called. Any notice of a shareholders meeting given by mail shall be deemed delivered when
deposited in the United States mail with postage thereon prepaid and addressed
to the shareholder at his address as it appears on the records of the Corporation.
Section 2.5 Persons Authorized to Give Notice. Notice of an annual meeting of the
shareholders of the Corporation shall be given or delivered by or at the direction of the
President, the Secretary, or the Board of Directors.
Section 2.6 Written Waiver of Notice. Any notice required by these Bylaws may be
waived by any person entitled thereto signing a waiver of notice before or after the time of said
meeting and such waiver shall be deemed equivalent to the giving of said notice.
Section 2.7 Waiver of Attendance. Attendance of a shareholder at any meeting shall
constitute a waiver of notice of such meeting, except where a shareholder attends a meeting for
the express purpose of objecting to the transaction of any business because the meeting is not
lawfully called or convened.
Section 2.8 Quorum. A majority of the outstanding shares of stock entitled to vote at
any meeting, represented in person or by proxy, shall constitute a quorum at a meeting of the
shareholders. Every decision of a majority of such quorum shall be valid as a corporate act unless
a larger vote is required by the Articles of Incorporation, these Bylaws or by law. If the holders
of the number of shares necessary to constitute a quorum shall fail to attend in person or by
proxy, a majority in interest of the shareholders present in person or by proxy shall have the
right successively to adjourn the meeting to a specified date not longer than ninety (90) days
after such adjournment. No notice need be given of such adjournment to shareholders not present at
the meeting.
Section 2.9 Persons Authorized to Convene Meetings. Every meeting shall be convened
by the President, the Secretary or some other officer or other person designated by the Board of
Directors.
Section 2.10 Shareholder Action Without Meeting. Any action required by law, the
Articles of Incorporation, or these Bylaws to be taken at a meeting of shareholders, or any action
which may be taken at a meeting of the shareholders, may be taken without a meeting if consents in
writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to
vote with respect to the subject matter thereof. Such consents shall have the same force and effect
as a unanimous vote of the shareholders at a meeting duly held. The Secretary shall file such
consents with the minutes of the meetings of the shareholders.
- 2 -
ARTICLE 3
Voting Procedure
Section 3.1 List of Voters. The officer having charge of the transfer book for shares
of the Corporation shall make a complete list of the shareholders entitled to vote at any meeting
at least ten (10) days before such meeting. Said list shall be arranged in alphabetical order with
the address of and the number of shares held by each shareholder. Said list, for a period of ten
(10) days prior to the meeting, shall be kept on file at the registered office of the Corporation
and shall be subject to inspection by any shareholder at any time during usual business hours.
Said list shall also be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any shareholder during the whole time of the meeting. Failure to
comply with the requirements of this section shall not affect the validity of any action taken at
any meeting.
Section 3.2 Inspectors. At any meeting called for the election of directors, if the
presiding officer of the Corporation or a majority in number of shares present at such meeting
desire, the President or other person presiding at the meeting shall appoint not less than two (2)
persons, who are not directors, as inspectors to receive and canvass the votes given at such
meeting and certify the result to him. Any inspector, before he shall enter on the duties of his
office, shall take and subscribe the following oath before any officer authorized by law to
administer oaths: I do solemnly swear, that I will execute the duties of an inspector of the
election now to be held with strict impartiality, and according to the best of my ability.
Section 3.3 Record Date/Close of Transfer Books. The Board of Directors shall have the
power to close the stock transfer books of the Corporation for a period not exceeding seventy (70)
days preceding the date of any meeting of shareholders or, in lieu thereof, to fix in advance a
date not exceeding seventy (70) days preceding the date of any meeting of shareholders as a record
date for the determination of the shareholders entitled to notice of and to vote at any such
meeting. If the Board of Directors shall not have closed the transfer books or fixed a record date
for the determination of shareholders entitled to notice of, and to vote at, a meeting of
shareholders, only the shareholders who are shareholders of record at the close of business of the
20th day preceding the date of the meeting shall be entitled to notice of, and to vote at, the
meeting; except that if, prior to the meeting, written waivers of notice of the meeting are signed
and delivered to the Corporation by all of the shareholders who are shareholders of record at the
time the meeting is convened, only the shareholders who are shareholders of record at the time the
meeting is convened shall be entitled to vote at the meeting, and any adjournment of the meeting.
- 3 -
ARTICLE 4
Votes
Section 4.1 Eligible Votes. Unless otherwise provided in the Articles of
Incorporation, each outstanding share entitled to vote under the provisions of the Articles of
Incorporation shall be entitled to one vote (or a fractional vote for each fractional share) on
each matter submitted to a vote at a meeting of shareholders. No cumulative voting shall be
permitted with respect to the election of directors or any other matter.
Section 4.2 Proxies. A shareholder may vote, with respect to any matter, including
but not limited to the election of directors, which may come before a meeting of shareholders,
either in person, subject to such conditions and restrictions as may be imposed by applicable law,
by proxy executed in writing by the shareholder or his duly authorized attorney in fact. No proxy
shall be valid after eleven (11) months from the date of execution unless otherwise provided in
the proxy. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only so long as, it is coupled with an interest sufficient in law to support an irrevocable
power of attorney. The interest with which it is coupled need not be an interest in the shares
themselves. In any case in which application law requires, as a condition to the validity of a
proxy, that it provide that it is revocable, a proxy which does not provide that it is revocable
shall be wholly invalid, and not valid but revocable.
Section 4.3 Corporate Shareholders. Shares of stock of the Corporation standing in
the name of another corporation, domestic or foreign, may be voted by such officer, agent or proxy
as the bylaws of such corporation may prescribe, or, in the absence of such provisions, as the
Board of Directors of such corporation may determine.
Section 4.4 Deceased Shareholders. Shares of stock standing in the name of a deceased
person may be voted by his personal representative, either in person or by proxy.
Section 4.5 Conservators and Trustees. Shares standing in the name of a conservator
or trustee (other than a trustee in bankruptcy) may be voted by such fiduciary, either in person
or by proxy, but no conservator or trustee (other than a trustee in bankruptcy) shall be entitled,
as such fiduciary, to vote shares held by him without a transfer of such shares into his name.
Section 4.6 Receivers and Trustees in Bankruptcy. Shares standing in the name of a
receiver or trustee in bankruptcy may be voted by such receiver or trustee in bankruptcy, and
shares held by or under the control of a receiver or trustee in bankruptcy may be
- 4 -
voted by such receiver or trustee in bankruptcy without the transfer thereof into his name if
authority so to do is conferred by applicable law or is contained in an appropriate order of the
court by which such receiver or trustee in bankruptcy was appointed.
Section 4.7 Pledges. A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred.
ARTICLE 5
Board of Directors
Section 5.1 Management and Number. The property, business and affairs of the
Corporation shall be controlled and managed by a Board of Directors consisting of three members,
none of whom need be shareholders or residents of any particular state. Unless fixed by the
Articles of Incorporation, the number of directors may at any time be increased or decreased by
amendment of these Bylaws. Any changes in the number of directors effected by an amendment to
these Bylaws shall be reported to the Secretary of State within
thirty (30) calendar days
following such change.
Section 5.2 Election and Vacancies. Each director shall hold office until the next
annual meeting of shareholders or until his successor shall have been elected and qualified or
until his death, resignation or removal. Vacancies on the Board of Directors and newly created
directorships resulting from any increase in the number of directors to constitute the Board of
Directors may be filled by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director, until the next election of directors by the shareholders
at an annual meeting or at a special meeting called for such purpose.
Section 5.3 Quorum. A majority of the full Board of Directors shall constitute a
quorum for the transaction of business unless a greater number is required by the Articles of
Incorporation. The act of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors unless the act of a greater number is required
by the Articles of Incorporation or these Bylaws. In the absence of a quorum at any meeting of the
Board, such meeting may be adjourned any number of times, without further notice, by a majority of
the directors present.
Section 5.4 Place/Manner of Meetings. The annual meeting of the Board of Directors
shall be held at the same place as the annual meeting of the shareholders, except that in the event
of adjournment of said annual meeting of the Board of Directors the
- 5 -
meeting may be reconvened at any place within or without the State of Illinois, as may be
designated by the directors adjourning said meeting. All regular and special meetings of the Board
of Directors shall be held at the principal business office of the Corporation or at such other
place within or without the State of Illinois as may be designated by the Board of Directors or
the officer calling the meeting. Notwithstanding the foregoing, members of the Board of Directors
may participate in any regular or special meeting by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can hear each other, and
participation in any such meeting by such means shall constitute presence and attendance at such
meeting for all purposes.
Section 5.5 Time of Meeting. The annual meeting of the Board of Directors shall be
held immediately following adjournment of the annual meeting of the shareholders, except that if a
quorum cannot then be assembled, said meeting shall be adjourned until such time as a quorum may
be assembled, but in no event later than thirty (30) days after the annual meeting of
shareholders. Regular meetings of the Board of Directors shall be held as frequently and at such
times as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be held at any time upon call of the Chairman of the Board (if one be
elected), the President, or a majority of the Board of Directors.
Section 5.6 Notice. Regular meetings of the Board of Directors may be held without
notice. Notice of each special meeting of the Board of Directors shall be given to each director,
by mail, telegram or facsimile transmission addressed to him at his usual business address at
least five (5) days prior to the meeting in case of notice by mail at least forty-eight (48) hours
prior to the meeting in case of notice by telegram or facsimile transmission, or by communicating
notice to a director directly (and not through a secretary, family member or other
person), either orally or in writing at a face-to-face meeting or by telephone, at least
twenty-four (24) hours prior to the meeting. A notice given by mail, telegram or facsimile
transmission shall be deemed given to any director when directed to such director at his address
or (in the case of notice by facsimile transmission) facsimile transmission number as it appears
in the records of the Corporation and when deposited in the United States Mail, postage prepaid,
when delivered to an appropriate telegraph office, charges prepaid, or when the senders facsimile
transmission equipment indicates that transmission has been completed, as the case may be. Neither
the business to be transacted nor the purpose of any special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
Section 5.7 Waiver. Attendance of a director at any meeting shall constitute a waiver
of notice except where a director attends a meeting for the express purpose of objecting to the
transaction
- 6 -
of any business because the meeting was not lawfully called or convened. Notice may also be waived
by a director by signing a waiver of notice before or after the time of said meeting. Any waiver
of notice by either of the means specified in this Section 5.7 shall be deemed equivalent to the
giving of said notice.
Section 5.8 Action by Directors Without Meeting. Any action which is required to be
or may be taken at a meeting if consents in writing, setting forth the action so taken, are signed
by all of the directors at a meeting duly held. The Secretary shall file such consents with the
minutes of the meeting of the Board of Directors.
Section 5.9 Compensation. The compensation of the directors may be set from time to
time by resolution of the Board of Directors, and a fixed sum and expenses of attendance, if any,
may be allowed for attendance at any regular or special meeting of the Board. Nothing herein
contained shall be construed to preclude a director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 5.10 Removal. At a meeting of shareholders called expressly for that purpose,
directors may be removed in the following manner. Such meeting shall be held at the registered
office or principal business office of the Corporation in the State of Illinois or in the city or
county in the State of Illinois in which the principal business office of the Corporation is
located. One or more directors or the entire Board of Directors may be removed with or without
cause, by the vote of the holders of a majority of the shares then entitled to vote at an election
of directors; provided, however, that if less than the entire Board is to be removed and if the
Articles of Incorporation or these Bylaws provide for cumulative voting in the election of
directors, no one of the directors may be removed if the votes cast against his removal would be
sufficient to elect him in then cumulatively voted at an election of the entire Board of
Directors.
ARTICLE 6
Committees
Section 6.1 Executive Committee. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate two or more directors to constitute an Executive
Committee, which committee, to the extent provided in said resolution and in any subsequent
resolution delegating additional authority or revoking any previous delegation of authority, shall
have and exercise all of the authority of the Board of Directors in the management of the
Corporation. The designation of such an Executive Committee and the delegation thereto of authority
by the Board of Directors shall not operate to relieve the Board of Directors, or any member
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thereof, of any responsibility imposed upon it or him by these Bylaws, the Articles of
Incorporation, or by law.
Section 6.2 Other Committees. The Board of Directors may designate one or more
directors to constitute such other committees not having or exercising the authority of the Board
of Directors in the management of the Corporation, but to deal with, address and study specific
subjects or issues and to make reports and recommendations to the Board of Directors with respect
thereto, all as specified by the Board.
Section 6.3 Committee Procedure. The majority of all the members of the Executive
Committee or any other committee may fix its rules of procedure, determine its action and fix the
time and place (whether within or without the State of Illinois) of its meetings and specify what
notice thereof, if any, shall be given, unless the Board of Directors shall provide otherwise by
resolution. Members of the Executive Committee or any other committee may participate in a meeting
of such committee by means of conference telephone or similar communication equipment whereby all
persons participating in the meeting can hear each other. Actions taken at a meeting of the
Executive Committee or any other committee shall be reported to the Board at its next meeting. The
Board of Directors, by resolution adopted by a majority of the whole Board, shall have the power
to fill vacancies, to appoint one or more directors to serve as alternate members of the Executive
Committee or other committees, and, at any time, to abolish the Executive Committee or any other
committee or remove any directors therefrom, either with or without cause.
Section 6.4 Action by Unanimous Consent. Any action which is required to be or may be
taken at a meeting of the Executive Committee or any other committee of the Board of Directors may
be taken without a meeting if consents in writing, setting forth the action so taken, are signed
by all of the directors who are members of said committee. Each such written consent shall be
filed with the minutes of the proceedings of the committee. Such a consent shall have the same
effect as a unanimous vote of the members of the committee taken at a meeting thereof.
ARTICLE 7
Officers
Section 7.1 Required and Permitted Officers. The Officers of the Corporation shall be
a President, a Secretary and such other officers, including a Chairman of the Board, one or more
Vice Presidents, a Treasurer, Assistant Secretary, Assistant Treasurer, and other assistant
officers as the Board of Directors may from time to time elect. If more than one Vice President be
elected, the Board may determine the seniority of each of said Vice
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Presidents. Any two or more offices may be held by the same individual.
Section 7.2 Election and Term. The President and Secretary shall be elected annually
by the Board of Directors at its first meeting following the annual meeting of the shareholders
and shall hold office at the pleasure of the Board of Directors. The Board of Directors may elect
other officers at any meeting of the Board. Any such other officers shall hold office at the
pleasure of the Board of Directors.
Section 7.3 Removal. Any officer elected by the Board of Directors may be removed by
the Board of Directors whenever in its judgment the best interests of the Corporation would be
severed by such removal, but such removal shall be without prejudice to the rights of the person
so removed under any contract between such person and the corporation, except to the extent
provided in any such contract.
Section 7.4 Vacancies. In case any office shall become vacant by reason of death,
resignation, removal or otherwise, the directors then in office, although less than a majority of
the entire Board of Directors, may, by a majority vote of those voting, choose a successor or
successors for the unexpired term.
Section 7.5 Compensation of Officers. The Board of Directors, or such officer as it
may designate, may fix the compensation for the officers of the Corporation and may fix the
compensation for such other officers and agents as may from time to time be appointed.
Section 7.6 Bond. The Board of Directors, by resolution, may require any and all of
the officers to give bond to the Corporation, with sufficient surety or sureties, conditioned for
the faithful performance of the duties of their respective offices, and to comply with such other
conditions as may from time to time be required by the Board of Directors.
ARTICLE 8
Duties of Officers
Section 8.1 Chairman of the Board. If a Chairman of the Board be elected, he shall
preside at all meetings of the Board of Directors at which he may be present. The Board of
Directors may delegate such other authority and assign such additional duties to the Chairman of
the Board, other than those conferred by law exclusively upon the President, as it may from time to
time determine. The Board also may designate the Chairman of the Board as the chief executive
officer of the Corporation, with all of the powers otherwise conferred upon the President of the
Corporation.
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The Board also may provide that the Chairman of the Board shall have the powers of the chief
executive officer coextensively with the President, or it may, from time to time, divide the
powers, responsibilities, duties and authority of the chief executive officer between the Chairman
of the Board and the President.
Section 8.2 The President. Unless the Board otherwise provides, the President shall
be the chief executive officer of the Corporation with such general executive powers and duties of
supervision and management as are usually vested in the chief executive officer of a corporation.
He shall see that all orders and resolutions of the Board of Directors are carried into
effect, subject to the right of the directors to delegate any specific powers to any other officer
or officers of the Corporation.
He shall preside at all meetings of the shareholders and, in the absence of the Chairman of
the Board, at meetings of the Board of Directors.
He, along with the Secretary or any other proper officer of the Corporation thereunto
authorized by the Board of Directors, may sign certificates for shares of the Corporation, deeds,
conveyances, bonds, mortgages, contracts or other instruments which the Board of Directors has
authorized to be executed, and unless the Board of Directors shall order otherwise by resolution,
he may make such contracts and execute such certificates, documents and other instruments as may
be incident thereto, as the ordinary conduct of the Corporations business may require.
Unless the Board otherwise provides, the President or any person designated in writing by him
may (i) attend meetings of shareholders of other corporations to represent the Corporation there
at and to vote or take action with respect to other shares of any such corporation owned by this
Corporation in such manner as he or his designee may determine; and (ii) execute and deliver
written consents, waivers of notice and proxies for and in the name of the Corporation with
respect to any such shares owned by this Corporation.
He shall, unless the Board provides otherwise, be, ex-officio, a member of the Executive
Committee and all other committees of the Board of Directors.
If a Chairman of the Board be elected or appointed and designated as the chief executive
officer of the Corporation, the President shall perform such duties as may be specifically
delegated to him by the Board of Directors as are conferred by law exclusively upon him. In the
absence, disability or inability to act of the Chairman of the Board, the President shall perform
the duties and exercise the powers of the Chairman of the Board.
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Section 8.3 Vice Presidents. Any Vice President elected by the Board of Directors
shall perform such duties as shall be assigned to him and shall exercise such powers as may be
granted to him by the Board of Directors or by the President of the Corporation. In the absence of
the President, the Vice Presidents, in order of their seniority, may perform the duties and
exercise the powers of the President with the same force and effect as if performed by the
President.
Section 8.4 The Secretary. The Secretary shall keep the minutes of the proceedings of
the shareholders, the Board of Directors, the Executive Committee (if any) and any other committee
or committees of the Board in one of the books provided for that purpose.
He shall be custodian of the corporate records and of the seal of the Corporation. He shall
see that the seal of the Corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the Corporation under its seal
is duly authorized in accordance with the provisions of these Bylaws and applicable law.
He shall sign with the President or a Vice President, certificates for shares of the
Corporation, the issue of which shall have been authorized by resolution of the Board of
Directors. He shall have general charge of the stock transfer book of the Corporation.
He shall keep a register of the post office address of each shareholder which shall be
furnished to the Secretary by such shareholder.
He shall see that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law and that the voting list is prepared for shareholders meetings.
In general, he shall perform all duties incident to the office of Secretary and such other
duties as may from time to time be assigned to him by the chief executive officer or by the Board
of Directors.
Section 8.5 The Treasurer. The Treasurer shall have responsibility for the funds and
securities of the Corporation. He shall receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit all such monies in the name of the Corporation
in such banks, trust companies or other depositories as shall be selected by the Board of Directors
or by any officer of the Corporation to whom such authority has been granted by the Board of
Directors.
He shall disburse or permit to be disbursed the funds of the Corporation as may be ordered or
authorized generally by the Board.
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He shall render to the chief executive officer of the Corporation and the directors whenever
they may require it, an account of all his transactions as Treasurer and of those under his
jurisdiction and of the financial condition of the Corporation.
In general, he shall perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the chief executive officer or by the
Board of Directors.
Section 8.6 Assistant Officers. Each assistant officer that may be selected pursuant
to these Bylaws shall hold office at the pleasure of the Board of Directors. In the absence or
nonavailability of the principal, the assistant may perform the duties and exercise the powers of
the principal with the same force and effect as if performed by the principal. The assistant shall
also have such lesser or greater authority and perform such other duties as the Board of Directors
may prescribe.
ARTICLE 9
Contracts, Checks, Loans and Deposits
Section 9.1 All contracts and agreements authorized by the Board of Directors and all checks,
drafts, bills of exchange or other orders for payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such officer or officers or
agent or agents, as may from time to time be permitted by these Bylaws, or as may be designated in
writing by the Board of Directors, the President or such officer or officers as the Board of
Directors may appoint. The designation or designations may be general or confined to specific
instances. The Board of Directors may authorize the use of facsimile signatures on any such
document.
ARTICLE 10
Issuance and Transfer of Stock
Section 10.1 Board Authorization. The issuance of shares of the capital stock of the
Corporation shall be authorized by the Board of Directors in accordance with the Articles of
Incorporation and the Illinois Business Corporation Act.
Section 10.2 Certificates. Certificates of stock of the Corporation shall be numbered
and registered as they are issued. They shall exhibit the holders name and the number of shares
and shall be signed by the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an
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Assistant Treasurer and shall bear the corporate seal, which may be facsimile, engraved or
printed. If any such certificate is countersigned by a transfer agent or registrar other than the
Corporation or an employee of the Corporation, any other signature thereon may be facsimile,
engraved or printed. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate may nevertheless
be issued by the Corporation with the same effect as if such person was such officer, transfer
agent or registrar at the date of issue.
Section 10.3 Transfers. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney-in-fact, lawfully
constituted in writing, upon surrender of such certificate duly and properly endorsed.
Section 10.4 Lost Certificates. In case of the loss or destruction of any certificate
of stock, a new certificate may be issued upon the following conditions: The owner shall file with
the Secretary an affidavit giving the facts in relation to the ownership and the loss or
destruction of said certificate, stating its number and the number of shares represented thereby.
The Secretary shall present such affidavit to the Board of Directors. If the Board of Directors
shall be satisfied that such certificate has been destroyed or lost, and that a new certificate
ought to be issued in lieu thereof, the Board may direct the officers of the Corporation to issue
a new certificate, or the Board may condition the issuance of a new certificate upon the filing of
a bond, in an amount and with a surety acceptable to the Board of Directors, to indemnify the
Corporation and save it harmless from any loss, expense, damage or liability occasioned by the
issuance of such new certificate. Upon receipt of the Boards direction, or the filing of any
required bond, the proper officers of the Corporation shall issue a new certificate for the same
number of shares to the owner of the certificate so lost or destroyed.
Section 10.5 Transfer Books. Proper books shall be kept under the direction of the
Secretary showing the ownership and transfer of all certificates of stock. These books shall
constitute the test of the qualifications of voters at any shareholders meeting.
ARTICLE 11
Fiscal Year
Section 11.1 The fiscal year of the Corporation shall be as established by the Board of
Directors.
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ARTICLE 12
Dividends
Section 12.1 The Board of Directors may from time to time declare, and the Corporation may
pay, dividends on its outstanding shares in cash, property, or its own shares subject to the
limitations and conditions imposed by applicable law and subject also to any restrictions
contained in the Articles of Incorporation.
ARTICLE 13
Seal
Section 13.1 The seal of the Corporation shall be in circular form and shall have inscribed
thereon the name of the Corporation and the words Corporate Seal and Illinois. The Board of
Directors may, by resolution, change the form of the corporate seal from time to time.
ARTICLE 14
Inspection of Books and Records
Section 14.1 Upon thirty (30) days written notice to the Secretary of the Corporation, a
shareholder, acting in good faith and for a proper purpose, may inspect such books and records of
the Corporation as shall be specifically identified in the notice, provided that the Corporation
shall be required by law to produce the same. The requirement of thirty (30) days written notice
may be reduced to a lesser number of days by the Board of Directors where the shareholder
demonstrates a proper need for more immediate inspection of such books and records. The notice
requesting inspection shall specify the purpose for which the examination is desired, the probable
duration of the examination, and the names of those individuals who desire to be present during the
examination. The inspection shall be performed during the Corporations usual and customary hours
of business and in such manner as will not unduly interfere with the regular conduct of the
business of the Corporation. The inspection may be supervised by an officer or agent of the
Corporation and the inspection shall be conducted at either the Corporations registered office,
the Corporations principal place of business, or at the office of the Corporations counsel, as
shall be determined by the President. Upon a proper showing of need, a shareholder may utilize the
assistance of attorneys, accountants or other experts in connection with the inspection, provided
that, if required by the Board of Directors, the shareholder and the experts shall agree to furnish
to the
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Corporation, as promptly as completed or made, a true and correct copy of any and every report or
other written memorandum with respect to such inspection made by such experts. No shareholder
shall use or permit to be used or acquiesce in the use by others of any information so obtained to
the detriment of the Corporation, nor shall furnish or permit to be furnished any information so
obtained to any competitor or prospective competitor of the Corporation. The Corporation, as a
condition precedent to any shareholders inspection of the records of the Corporation, may require
the shareholder to indemnify the Corporation against any loss or damage which may be suffered by
it arising out of or resulting from any unauthorized disclosure made or permitted to be made by
such shareholder, his employee or agent of information obtained in the course of inspection.
ARTICLE 15
Amendments
Section 15.1 These Bylaws may be made, altered, amended, or replaced in the manner specified
in the Articles of Incorporation.
ARTICLE 16
Miscellaneous
Section 16.1 Interpretation. Whenever the context so requires, the masculine shall
include the feminine and neuter, and the singular shall include the plural and conversely.
Section 16.2 Inoperative Portion. If any portion of these Bylaws shall be invalid or
inoperative, then, so far as is reasonable and possible, the remainder shall be considered valid
and operative, and effect shall be given to the intent manifested by the portion held invalid or
inoperative.
Section 16.3 Table of Contents Headings. The table of contents and headings are for
organization, convenience and clarity and in no way define, limit or describe the scope of these
Bylaws nor the intent of any provision thereof.
ADOPTION OF BYLAWS BY
UNANIMOUS WRITTEN CONSENT
The undersigned, being the Sole Shareholder of Allied Waste Industries of Illinois, Inc., an
Illinois corporation (the Corporation), does hereby adopt the foregoing Bylaws as the initial
Bylaws of the Corporation.
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IN WITNESS WHEREOF, the undersigned have executed this consent as of the 29th day of January,
1996.
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SOLE SHAREHOLDER: |
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Allied Waste Industries
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By
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/s/ Thomas K. Kehoe
Thomas K. Kehoe, Its Secretary
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exv3w610
Exhibit 3.610
CERTIFICATE OF FORMATION
LEMONS LANDFILL, LLC
Pursuant
to § 18-201, Delaware Code Annotated, the undersigned States as follows:
1. Name. The name of the limited liability company (the Company) formed by this
instrument is Lemons Landfill, LLC.
2. Registered
Office; Registered Agent. The address of the registered office of the
Company in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New
Castle. The Companys registered agent at that address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation to be duly
executed as of the 21st day of November, 1997.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member |
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By:
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/s/ Steven M. Helm
Steven M. Helm, Vice President/Legal
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exv3w611
Exhibit 3.611
OPERATING AGREEMENT OF
LEMONS LANDFILL, LLC
This Operating Agreement is executed as of November 21, 1997, by Allied Waste North America,
Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is Lemons Landfill, LLC. The name of the Company
may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
2
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
3
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Allied Waste North America, Inc.,
a Delaware corporation |
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By:
Its:
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/s/ Henry L. Hirvela
Vice President
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6
EXHIBIT A
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Initial |
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Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc. |
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$ |
100.00 |
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15880 N. Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, Arizona 85260 |
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7
exv3w612
Exhibit 3.612
CERTIFICATE OF LIMITED PARTNERSHIP
OF
LEWISVILLE LANDFILL TX, LP
The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised
Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, hereby certifies as follows:
I. The
name of the limited partnership is Lewisville Landfill TX, LP.
II. The address of the Partnerships registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The name of the Partnerships
registered agent for service of process in the State of Delaware at such address is The
Corporation Trust Company.
III.
The name and mailing address of the general partner are as follows:
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of
Lewisville Landfill TX, LP as of December 12, 2001.
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Allied Waste Landfill Holdings, Inc., |
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a Delaware corporation, |
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its General Partner |
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By:
Name:
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/s/ Jo Lynn White
Jo Lynn White
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Title:
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Secretary |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:00 PM 12/12/2001
010636932 3467819
exv3w613
Exhibit 3.613
AGREEMENT OF LIMITED PARTNERSHIP OF
LEWISVILLE LANDFILL TX, LP
This Agreement of Limited Partnership is entered into as of December 12, 2001, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and BFI
WASTE SYSTEMS OF NORTH AMERICA, INC., a Delaware corporation, as the Limited Partner, on the
following terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Lewisville Landfill TX, LP. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted
under Delaware law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Delaware
shall be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware by the General
Partner, upon written notice to the Limited Partner. The Partnership may maintain a registered
office in any state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Delaware are The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The agent for service
of legal process may be changed by the General Partner upon written notice to the Limited
Partners.
1.7 Term. The term of the Partnership shall commence on the date the General Partner
files a Certificate of Limited Partnership in Delaware, and shall continue in perpetuity until the
Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Delaware Secretary of State in accordance with the provisions of the Act. The
Partners shall take any and all other actions, and shall execute and file such amendments to this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Delaware.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction with such
contributions, each Partner shall receive a credit to its Capital Account equal to its Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A. No
Partner shall be obligated to make additional Capital Contributions to the Partnership, except
upon the unanimous written consent of the Partners.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Partner
shall withdraw any Capital Contributions or any money or other property from the Partnership
without the written consent of the other Partners. Under circumstances requiring a return of any
Capital Contributions, no Partner shall have the right to receive property other than cash, unless
otherwise specifically agreed in writing by the Partners at the time of such distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon by the
Partners, and except as otherwise provided by the Act or by any other applicable state law, no
Partner shall be required to make any other Capital Contributions or to loan any funds to the
Partnership. No Partner shall have any personal liability for the repayment of its Capital
Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Partnership, and no creditor of the Partnership will be
entitled to require any Partner to solicit or demand Capital Contributions from any other Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partners interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
2
2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash Flow, if any, shall be distributed to the Partners in proportion to their Percentage
Interests at such times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in proportion
to their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon the
advice of the Partnerships tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4,
in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge, encumber and
otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and instruments
necessary or convenient in connection with the Partnerships business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any Partnership
property;
3
(e) borrow money and issue evidences of indebtedness necessary, convenient or incidental to
the accomplishment of the purposes of the Partnership, and secure the same by mortgage, pledge or
other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend any liabilities
affecting the Partnerships property and in connection therewith execute any extensions or
renewals of encumbrances on any or all of the Partnerships property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a condition precedent
to acts by the General Partner or that are in any other manner germane to the affairs of the
Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or document of the
Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever involving the
Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons as
officers of the Partnership. The officers shall have the authority to act for and bind the
Partnership to the extent of the authority granted to them by the General Partner on behalf of the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the General Partner deems appropriate. The
officers of the Partnership will be entitled to such compensation for their services as the
General Partner may reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of the
Partners of any transaction, notice, event or proposal directly relating to the management and
operation of the Partnership or to its assets that does or could materially affect, either
adversely or favorably, the Partnership, its business or its assets.
4
5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners and their officers and directors (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Partnership, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the Partnership
as the tax matters partner under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (Transfer) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and Limited
Partners holding a simple majority of the Percentage Interests held by all of the non-Transferring
Limited Partners. A transferee of a Partners interest in the Partnership will be admitted as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported Transfer
that does not comply with the provisions of this Section 8 shall be void and shall not
cause or constitute a dissolution of the Partnership.
8.2 Assignee of Partners Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partners interest, as provided in the
Act;
(b) shall have no right to participate in the business and affairs of the
Partnership or to exercise any rights of a Partner under this Agreement or the Act; and
5
(c) shall share in distributions and allocations from the Partnership with respect to the
transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a Substituted Limited Partner) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of
its entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to receive distributions and allocations with respect to its Partnership interest, shall be
treated as the transferee of a Limited Partner, and shall have the right to become a Substituted
Limited Partner upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person ceases
to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership has
no General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the Partnership
and its business without dissolution. The election of a new General Partner shall require the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnerships assets and the collection of
the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the Partnership and
its business without dissolution pursuant to Section 9.2 hereof in the event any Person
ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 hereof, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 hereof and no Person named as a successor General
Partner in Section 9.3 hereof is then serving as the General Partner.
6
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or
court-
appointed trustee if there be no General Partner) shall take full account of the
Partnerships
liabilities and Partnerships property, and the Partnerships property shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. During the period of
liquidation,
the business and affairs of the Partnership shall continue to be governed by the provisions
of this
Agreement. The proceeds from liquidation of the Partnerships property, to the extent
sufficient
therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnerships debts and liabilities (other
than those to the Partners), including the establishment of any necessary reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the
Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the
Delaware
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 Notices. Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be delivered personally
to the Person to whom the same is directed, or sent by facsimile transmission, or by registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.6 hereof, or to such other address as
the Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on Exhibit A to this Agreement, or to such other address as the Partner may from time to
time specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1. Any such notice shall be effective upon actual receipt thereof.
11.2 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the benefit of the
Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partners
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify in
any manner any provision of Section 8 hereof.
7
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
11.5 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
11.8 Delaware Law. The laws of the State of Delaware shall govern the validity of
this Agreement, the construction of its terms and the interpretation of the rights and duties of
the Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right that such Partner may have to maintain any action for partition with respect to any of the
Partnerships property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of the
General Partner.
SECTION 12. DEFINITIONS
12.1 Act means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del.
Code Ann.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any corresponding
provisions of succeeding law).
12.2 Agreement means this Agreement of Limited Partnership, as amended from time to time.
Words such as herein, hereinafter, hereof, hereto and hereunder refer to this Agreement
as a whole, unless the context otherwise requires.
12.3 Capital Account means the capital account maintained for each Partner in accordance
with Section 3.4 hereof.
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12.4 Capital Contribution means, with respect to any Partner, the amount of money and the
net fair market value of property (other than money) contributed to the Partnership by such
Partner.
12.5 Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
12.6 General Partner means any Person who (a) is referred to as such in the first paragraph
of this Agreement and whose name is set forth on Exhibit A to this Agreement as a General
Partner, or who has become a General Partner pursuant to the terms of this Agreement, and (b) has
not ceased to be a General Partner pursuant to the terms of this Agreement. General Partners
means all such Persons.
12.7 Limited Partner means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement as
a Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the terms
of this Agreement. Limited Partners means all such Persons.
12.8 Net Cash Flow means the gross cash proceeds to the Partnership from all sources, less
the portion thereof used to pay or establish reserves for Partnership expenses, debt payments
(including payments on loans from Partners), capital improvements, replacements and contingencies,
all as reasonably determined by the General Partner.
12.9 Partners means the General Partners and the Limited Partners, where no distinction is
required by the context in which the term is used herein. Partner means any one of the Partners.
12.10 Partnership means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 Percentage Interest means, with respect to each Partner, a Partners interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided for
in this Agreement. The Partners Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 Person means any individual, partnership, corporation, limited liability company,
trust, or other entity.
12.13 Profits and Losses means, for each fiscal year or other period, an amount equal to
the Partnerships taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), reduced by any items of income or gain subject to special allocation pursuant
to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
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12.15 Substituted Limited Partner has the meaning given that term in Section 8.3.
12.16 Transfer has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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GENERAL PARTNER: |
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LIMITED PARTNER: |
Allied Waste Landfill Holdings, Inc., |
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BFI Waste Systems of North America, Inc., |
a Delaware corporation |
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a Delaware corporation |
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By:
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/s/ Jo Lynn White
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By:
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/s/ Jo Lynn White
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Name:
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Jo Lynn White
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Name:
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Jo Lynn White |
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Its:
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Secretary
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Its:
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Secretary |
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EXHIBIT A
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Initial Capital |
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Percentage |
Name and Addresses of Partners |
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Contribution |
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Interest |
General Partner:
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$ |
10.00 |
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1 |
% |
Allied Waste Landfill Holdings, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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Limited Partner:
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$ |
990.00 |
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99 |
% |
BFI Waste Systems of North America, Inc.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
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FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
LEWISVILLE LANDFILL TX, LP
This First Amendment to Limited Partnership Agreement of Lewisville Landfill TX, LP (the
First Amendment) is entered into effective as of December 31, 2001 by and between Allied Waste
Landfill Holdings, Inc., a Delaware corporation, as the General Partner (AWLH), and Allied Waste
Systems Holdings, Inc., a Delaware corporation, as the Limited Partner (AWSH) (collectively, the
Partners).
RECITALS
A. Lewisville Landfill TX, LP (the Limited Partnership) was formed as a Delaware
limited partnership pursuant to that certain Certificate of Limited Partnership filed with
the
Delaware Secretary of State on December 12, 2001, and the related Agreement of Limited
Partnership of Lewisville Landfill TX, LP, dated as of December 12, 2001 (the Agreement)
between AWLH and BFI Waste Systems of North America, Inc., a Delaware corporation
(BFINA). Unless specifically defined herein, capitalized terms appearing in this First
Amendment shall have the meanings given those terms in the Agreement.
B. Pursuant to an intra-company transfer, BFINA transferred its interest in the
Partnership to AWSH.
C. The Partners desire to acknowledge the admission of AWSH as a substituted limited
partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of BFINAs interest in the Partnership
to AWSH and (b) the admission of AWSH as a substituted limited partner.
2. Acceptance. AWSH hereby acknowledges the assumption of all of BFINAs
responsibilities and obligations as a Limited Partner in the Partnership, and agrees to be bound
by the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all
terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
above written.
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Allied Waste Landfill Holdings, Inc.,
a Delaware corporation
General Partner
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|
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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Allied Waste Systems Holdings, Inc.,
a Delaware corporation
Limited Partner
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|
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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-2-
EXHIBIT A
|
|
|
|
|
|
|
Percentage |
Names and Addresses of Partners |
|
Interest |
Allied Waste Systems Holdings, Inc.
|
|
|
99 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
|
|
|
|
|
|
|
|
|
Allied Waste Landfill Holdings, Inc.
|
|
|
1 |
% |
15880 N. Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260 |
|
|
|
|
|
|
|
|
|
TOTAL |
|
|
100 |
% |
-3-
exv3w614
Exhibit 3.614
CERTIFICATE OF INCORPORATION
FIRST: The name of the corporation is:
Liberty Waste Holdings, Inc.
SECOND: The address of the corporations registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle. The name of its registered agent
at such address is Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall have
authority to issue is 1,000 shares of Common Stock of the par value of $.01 per share.
FIFTH: The name and mailing address of the incorporator are: Cindy Sabish, Kirkpatrick &
Lockhart LLP, 1500 Oliver Building, Pittsburgh, Pennsylvania 15222.
SIXTH: The corporation is to have perpetual existence.
SEVENTH: In furtherance and not in limitation of the powers conferred by statute, the
board of directors is expressly authorized to adopt, amend or repeal the by-laws of the
corporation.
EIGHTH: Meetings of stockholders may be held within or without the State of Delaware,
as the by-laws may provide. The books of the corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places as may be
designated from time to time by the board of directors or in the by-laws of the corporation.
Elections of directors need not be by written ballot unless the by-laws of the corporation shall so
provide.
NINTH: The corporation reserves the right to amend, alter, change or repeal any
provision contained in this certificate of incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
TENTH: The corporation shall indemnify, to the fullest extent now or hereafter
permitted by law, each director or officer of the corporation who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact that he is or was
an authorized representative of the corporation, against all expenses (including attorneys fees
and disbursements), judgments, fines (including excise taxes and penalties) and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding.
A director of the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, provided however,
that this provision shall not eliminate or limit the liability of a director to the extent that
such elimination or limitation of liability is expressly prohibited by the Delaware General
Corporation Law as in effect at the time of the alleged breach of duty by such director.
Any repeal or modification of this Article by the stockholders of the corporation shall not
adversely affect any right or protection existing at the time of such repeal or modification to
which any person may be entitled under this Article. The rights conferred by this Article shall not
be exclusive of any other right which the corporation may now or hereafter grant, or any person may
have or hereafter acquire, under any statute, provision of this Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or otherwise. The rights
conferred by this Article shall continue as to any person who has ceased to be a director or
officer of the corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
For the purposes of this Article, the term authorized representative shall mean a director,
officer, employee or agent of the corporation or of any subsidiary of the corporation, or a
trustee, custodian, administrator, committeeman or fiduciary of any employee benefit plan
established and maintained by the corporation or by any subsidiary of the corporation, or a person
who is or was serving another corporation, partnership, joint venture, trust or other enterprise in
any of the foregoing capacities at the request of the corporation.
THE UNDERSIGNED, being the incorporator named above, for the purposes of forming a corporation
pursuant to the General Corporation Law of the State of Delaware, does make this certificate,
hereby declaring and certifying that this is my act and deed and the facts herein stated are true,
and accordingly have hereunto set my hand this 10th day of July, 1997.
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/s/ Cindy Sabish
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Cindy Sabish Incorporator |
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RESERVATION NO. 2770849
-2-
exv3w615
Exhibit 3.615
AMENDED AND RESTATED BYLAWS
OF
LIBERTY WASTE HOLDINGS, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days (unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days (or any shorter period required by law), or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days (or
any longer period required by law) prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also be produced and
kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the stockholders
(or such lesser percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation.
Regular meetings of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there is one, the President or any two (2)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram, not less than twenty-four (24) hours before the date
of the meeting, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Articles of Incorporation or these Bylaws, as the same may be
amended from time to time or limited by applicable state law, members of the Board of
Directors of the Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of a
conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant
to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the
directors
of the Corporation. The Board of Directors may designate directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a committee, and in the absence
of a designation by the Board of Directors of an alternate member to replace the absent or
disqualified
member, the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any absent or
disqualified member. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of
Directors when required. The Board shall have the power at any time to change the members
of any such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the
Corporation for their reasonable out-of-pocket expenses incurred in connection with their
attendance at Board meetings, and shall receive such other compensation as maybe determined
by the Board of Directors from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in
applicable state law, no contract or transaction between the Corporation and one or more
of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or
5
officer is present at or participates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose if (i) the material facts as to his or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee, in good faith, authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board
of Directors shall designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall perform the duties of
the President, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books
7
to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that
all books, reports, statements, certificates and other documents and records required by law to be
kept or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
8
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If
required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
9
Section 4. Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on
the books of the Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender of the certificate
therefor, which shall be canceled before a new certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action, the Board
of Directors may fix, in advance, a record date, which shall not be more than sixty (60)
days nor less than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action (unless a greater or lesser period is required by
applicable state law). A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner of shares to receive
dividends,
and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to
time, to be given to any director, member of a committee or stockholder, such notice may
be given by mail, addressed to such director, member of a committee or stockholder, at
his address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Unless otherwise limited by applicable state law,
written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to
time, to be given to any director, member of a committee or stockholder, a waiver thereof
in writing, signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
10
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, as the same
may be amended from time to time, if any, may be declared by a decision of a majority of
the entire Board of Directors at any regular or special meeting, and may be paid in cash,
in property, or in shares of the capital stock of the Corporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or
abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a
seal of the Corporation, which shall have inscribed thereon the name of the Corporation,
and the state and year of its organization. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall
extend to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a director or
officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the person (a) did
not act in good faith and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Corporation, and, (b) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan
or other enterprise against expenses (including attorneys fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
12
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
his conduct was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the advice of legal counsel
for the Corporation or another enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request of the Corporation
as a director, officer, employee or agent. The provisions of this Section 4 of this Article VIII
shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of
this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
13
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the
provisions of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the provisions of this
Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may
be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of
stockholders or Board of Directors, as the case may be. Except as otherwise provided in the
Certificate of Incorporation, all such amendments must be approved by either the holders of a
majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire
Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any
inconsistency to be resolved in favor of the Certificate or applicable state law, as the case may
be, and the Bylaws shall be deemed to be amended automatically from time to time to eliminate any
such inconsistencies which may then exist.
15
exv3w616
Exhibit 3.616
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STATE OF DELAWARE |
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SECRETARY OF STATE |
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DIVISION OF CORPORATIONS |
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FILED 09:00 AM 09/04/1997 |
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971295668 - 2792672 |
CERTIFICATE OF FORMATION
OF
LIBERTY WASTE SERVICES LIMITED, L.L.C.
A Limited Liability Company
FIRST:
The name of the limited liability company is:
Liberty Waste Services Limited, L.L.C.
SECOND: The address of the limited liability companys registered office in
the State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
THE UNDERSIGNED, being the individual forming the limited liability company,
has executed, signed and acknowledged this Certificate of Formation
this 4th day of
September, 1997,
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/s/ Cindy Sabish
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Cindy Sabish |
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Authorized person |
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CERTIFICATE OF AMENDMENT
OF
LIBERTY WASTE SERVICES LIMITED, L.L.C.
1. |
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The Name of the limited liability company is LIBERTY WASTE SERVICES LIMITED, L.L.C. |
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2. |
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The Certificate of Formation of the limited liability company is hereby amended as follows: |
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The address of its registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment of
LIBERTY WASTE SERVICES LIMITED, L.L.C. this
7th day of April, 1999.
exv3w617
Exhibit 3.617
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
LIBERTY WASTE SERVICES LIMITED, L.L.C.
This Second Amended and Restated Limited Liability Company Agreement (this Agreement) of
Liberty Waste Services Limited, L.L.C. (the Company) is entered into as of
November , 1998 by American Disposal Services of Illinois, Inc., as sole member (the
Member).
On September 4, 1997, the Company was organized as a limited liability company pursuant to and
in accordance with the Delaware Limited Liability Company Act (6
Del.C. § 18-101, et seq.),
as amended from time to time (the Act). Pursuant to an Agreement of Merger, dated as of September
23, 1998, the Member is the holder of all the limited liability company interests in the Company
and desires to amend and restate the Liberty Waste Services Limited, L.L.C. First Amended and
Restated Limited Liability Company Agreement dated as of March 13, 1998 as follows:
1. Name. The name of the limited liability company formed hereby is Liberty
Waste Services Limited, L.L.C. (the Company).
2. Purpose. The Company is formed for the object and purpose of, and the nature of the
business to be conducted and promoted by the Company is, engaging in any lawful act or activity for
which limited liability companies may be formed under the Act and engaging in any and all
activities necessary or incidental to the foregoing.
3. Registered Office. The address of the registered office of the Company in the State
of Delaware is c/o Corporation Service Company, 1013 Centre Road, Wilmington, New Castle County,
Delaware 19805-1297.
4. Registered Agent. The name and address of the registered agent of the Company for
service of process on the Company in the State of Delaware is Corporation Service Company, 1013
Centre Road, Wilmington. New Castle County, Delaware 19805-1297.
5. Members. The name and address of the sole member is as follows:
American Disposal Services of Illinois, Inc.
745 McClintock Drive
Suite 230
Burr Ridge, Illinois 60521
6. Powers. The business and affairs of the Company shall be managed by the
Member. The Member shall have the power and authority to do any and all acts necessary or
convenient to or for the furtherance of the purposes described herein, including all powers,
statutory or otherwise, possessed by members of limited liability companies under the laws of the
State of Delaware. The Member may appoint such managers and officers of the Company as it deems
appropriate, to have such power and authority as the Member deems appropriate.
7. Dissolution. The Company shall dissolve, and its affairs shall be
wound up upon the written consent of the Member or the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
8. Capital Contributions. The Member may, but is not required to, make any
capital contribution to the Company.
9. Allocation of Profits and Losses. The Companys profits and losses shall be
allocated to the Member.
10. Distributions. Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member.
11. Resignation. The Member may not resign from the Company until the admission
of at least one additional member to the Company.
12. Admission of Additional Members. One or more additional members of the Company
may be admitted to the Company with the consent of the Member.
13. Liability of Members. The Member shall not have any liability for the
obligations or liabilities of the Company except to the extent provided in the Act.
14. Governing Law. This Agreement shall be governed by, and construed under, the
laws of the State of Delaware, all rights and remedies being governed by said laws.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Amended and Restated Limited Liability Company Agreement as of the date first above written.
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AMERICAN DISPOSAL SERVICES OF ILLINOIS, INC.
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By: |
/s/
Steven M. Helm
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Name: |
Steven M. Helm |
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Title: |
Vice President |
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2
exv3w618
Exhibit 3.618
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Form LLC-5.5
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Illinois
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This space for use by |
January 1995
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Limited Liability Company Act
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Secretary of State |
George H. Ryan
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Articles of Organization |
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Secretary of State
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Filing Fee $500. |
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Department of Business Services
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SUBMIT IN DUPLICATE
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FILED |
Limited Liability Company Division
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Must be typewritten
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FEB 20 1996 |
Room 359, Howlett Building |
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Springfield, IL 62756
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This space for use by Secretary of State
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LIMITED LIABILITY CO. DIV. |
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Payment must be made by certified
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Date 02-20-1996
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GEORGE H. RYAN |
check, cashiers check, Illinois
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Assigned File # 0005-869-6
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SECRETARY OF STATE |
attorneys check, Illinois C.P.A.s check
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Filing Fee $500.00 |
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or money order, payable to Secretary
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Approved: /s/ [ILLEGIBLE] |
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of State. |
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1. |
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Limited Liability Company Name: Liberty Waste Services of Illinois, L.L.C. |
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(The LLC name must contain the words limited liability company or L.L.C. and cannot contain
the terms corporation, corp., incorporated, inc., ltd., co., limited partnership, or L.P.) |
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2. |
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Transacting business under an assumed name:
þ Yes o No. |
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(If YES, a Form LLC-1.20 is required to be completed and attached to these Articles.) |
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3. |
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The address, including county, of its principal place of business: (Post office box alone
and c/o are unacceptable.) |
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P.O. Box 97, East Route 16, Litchfield, Illinois 62056 Montgomery Co. |
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4. |
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Federal Employer Identification Number (F.E.I.N.): applied for |
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5. |
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The Articles of Organization are effective on: (Check one) |
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a) |
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þ the filing date, or b) another date later than but not more than 60 days
subsequent to the filing date: |
(month, day, year)
6. |
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The registered agents name and registered office address is: |
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Registered agent:
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Illinois Corporation Service Company |
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First Name
Middle Initial
Last Name |
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Registered Office:
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700 South Second Street |
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(P.O. Box alone and
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Number
Street
suite
# |
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c/o are unacceptable)
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Springfield
62704 Sangamon |
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City
Zip Code
County |
7. |
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Purpose or purposes for which the LLC is organized: Include the business code # (from IRS
Form 1065) |
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(If not sufficient space to cover this point, add one or more sheets of this size.) |
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Any lawful business for which limited* Illinois Limited Liability Company |
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Act, 805 ILCS 180/1-1 et seq. |
* |
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liability companies may be organized
under # 8834 |
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8. |
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The latest date the company is to dissolve
December 31, 2030 |
(month, day, year)
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And other events of dissolution enumerated on an attachment. (Optional) |
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(ILL. LLC 3333 8/16/95) |
ATTACHMENT
Continuation of 10(b): Member names and addresses
Liberty Waste Services, Ltd.
P.O. Box 454
Napoleon, Ohio 43545
EIN #34-1812746
Mr. Derk Ball
P.O. Box 42788
Evergreen Park, IL 60805
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Form LLC-5.25
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Illinois
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This space for use by |
January 1994
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Limited Liability Company Act
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Secretary of State |
George H. Ryan
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Articles of Amendment |
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Secretary of State
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Filing Fee $100. |
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Department of Business Services
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SUBMIT IN DUPLICATE
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FILED |
Limited Liability Company Division
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Must be typewritten
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SEP 23 [ILLEGIBLE] |
Room 357, Howlett Building |
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Springfield, IL 62756
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This space for use by Secretary of State
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LIMITED LIABILITY CO. DIV |
Payment may be made by business
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Date 9-23-96
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GEORGE H. RYAN |
firm check payable to Secretary of State.
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Assigned File # 00058696
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SECRETARY OF STATE |
(If check is returned for any reason this
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Filing Fee $100.00 |
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filing will be void.)
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Approved:
/s/ [ILLEGIBLE] |
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1. |
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Limited Liability Company name: Liberty Waste Services of Illinois, L.L.C. |
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2. |
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File number assigned by the Secretary of State: 0005-869-6 |
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3. |
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Federal Employer Identification Number (F.E.I.N.): 521960161 |
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4. |
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These Articles of Amendment are effective on
þ the file date or a later date being , not to exceed 30 days after the file date. |
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5. |
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The Articles of Organization is amended as follows: (Attach a copy of the text of each
amendment adopted.) |
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(Address changes of P.O. Box and c/o are unacceptable) |
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þ a) |
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Admission of a new member (give name and address below) |
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o b) |
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Admission of a new manager (give name and address below) |
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þ c) |
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Withdrawal of a member (give name below) |
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o d) |
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Withdrawal of a manager (give name below) |
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o e) |
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Change in the address of the office at which the records required by Section 1-40 of the
Act are kept (give new
address, including county below) |
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o f) |
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Change of registered agent and/or registered agents office (give new name and
address, including county
below) |
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o g) |
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Change in the limited liability companys name (list below) |
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o h) |
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Change in date of dissolution or other events of dissolution enumerated in item 8 of the
Articles of Organization |
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o i) |
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Other (give information below) |
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Withdrawing member:
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New member: |
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Mr. Derk Ball
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Laurel Mountain Partners LLP |
P.O. Box 42788
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CNG Tower, Suite 3100 |
Evergreen Park, IL 60805
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Liberty Avenue |
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Pittsburgh, PA 15222 |
* |
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The members were listed incorrectly on the original filing. |
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LLC 11 |
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(ILL. - LLC - 3334 - 3/21/94) |
LLC-5.25
6. |
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This amendment was adopted by the managers. S. 5-25(3) o Yes þ No |
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a) |
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The majority of the managers so approved. o Yes þ No |
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b) |
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Member action was not
required. o Yes þ No |
7. |
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This amendment was adopted by the members. S. 5-25(4) þ Yes o No |
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a) |
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At a meeting of the members, with the required number of affirmative votes necessary to
adopt the amendment. |
o
Yes þ No
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b) |
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Only by written consent signed by the members having the required number of votes
necessary to adopt the
amendment. |
þ
Yes o No
8. |
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The undersigned affirms, under penalties of perjury, having authority to sign hereto, that
this articles of amendment is
to the best of my knowledge and belief, true, correct and complete. |
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Dated April 9, 1996. |
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/s/ Jeffrey D. Kendall |
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(Signature) |
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Jeffrey D. Kendall/ President |
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(Type or print Name and Title) |
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Liberty Waste Services, Ltd./Member |
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(If applicant is a company or other
entity, state name of company and
indicate whether it is a member or
manager of the LLC.) |
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Form LLC-5.25
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Illinois
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This space for use by |
January 1998
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Limited Liability Company Act
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Secretary of State |
George H. Ryan
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Articles of Amendment |
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Secretary of State
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Filing Fee (see note). |
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Department of Business Services
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SUBMIT IN DUPLICATE
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FILED |
Limited Liability Company Division
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Must be typewritten
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APR 14 1998 |
Room 359, Howlett Building |
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Springfield, IL 62756
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This space for use by Secretary of State
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LIMITED LIABILITY CO. DIV |
http://www.sos.state.il.us |
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GEORGE H. RYAN |
Payment may be made by business
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Date
[ILLEGIBLE]
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SECRETARY OF STATE |
firm check payable to Secretary of State.
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Assigned File #
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(If check is returned for any reason this
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Filing
Fee $ 100 |
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filing will be void.)
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Approved: |
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1. |
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Limited Liability Company name Liberty Waste Services of Illinois, L.L.C. |
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2. |
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File number assigned by the Secretary of State: 00058696 |
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Federal Employer Identification Number (F.E.I.N.): 52-1960161 |
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These Articles of Amendment are effective on þ the file date or a later date being , not to exceed 30 days after the file date. |
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5. |
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The company has elected in its operating agreement to be governed by the amendatory Act of 1997: |
þ Yes o No
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The Articles of Organization are amended as follows: (Attach a copy of the text of
each amendment adopted.) |
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(Address changes of P.O. Box and c/o are unacceptable) |
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o a) |
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Admission of a new member (give name and address below) |
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o b) |
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Admission of a new manager (give name and address below) |
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o c) |
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Withdrawal of a member (give name below) |
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o d) |
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Withdrawal of a manager (give name below) |
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o e) |
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Change in the address of the office at which the records required by Section 1-40
of the Act are kept (give new
address, including county below) |
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o f) |
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Change of registered agent and/or registered agents office (give new name and
address, including county
below) |
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o g) |
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Change in the limited liability companys name (list below) |
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o h) |
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Change in date of dissolution or other events of dissolution enumerated in item 8 of
the Articles of Organization |
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þ i) |
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Other (give information below) |
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i) |
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Liberty Waste Services of Illinois, L.L.C. (the LLC) is
not managed by members. The LLC is managed under the direction
of the following managers: |
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Jeffrey D. Kendall
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625 Liberty Avenue, Pittsburgh, PA 15222 |
Donald E. Rea
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625 Liberty Avenue, Pittsburgh, PA 15222 |
James Van Poppel
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625 Liberty Avenue, Pittsburgh, PA 15222 |
LLC-11.1
LLC-5.25
7. |
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This amendment was adopted by the managers. S. 5-25(3)
o Yes þ No |
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a) |
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Not less than minimum number of managers so approved. o Yes þ No |
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b) |
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Member action was not required.
o Yes þ No |
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This amendment was adopted by the members. S. 5-25(4) þ Yes o No |
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Not less than minimum number of members so approved. |
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9. |
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The undersigned affirms, under penalties of perjury, having authority to sign hereto, that
this articles of amendment is to the best of my knowledge and belief, true, correct and
complete. |
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Dated March 31, 1998. |
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/s/ Jeffrey D. Kendall |
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(Signature) |
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Jeffrey D. Kendall, President |
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(Type or print Name and Title) |
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Liberty Waste Services, Ltd., Member |
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(If applicant is a company or other
entity, state name of company and
indicate whether it is a member or
manager of the LLC.) |
NOTE: * |
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If the company has elected in its operating agreement to be
governed by the amendatory Act of 1997, and the only change is a change in
the registered agent and/or registered office, the filing fee is $25. |
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If the company has not elected in its operating agreement to be
governed by the amendatory Act of 1997, and/or other changes are also
reported, the filing fee is $100. |
exv3w619
Exhibit 3.619
AMENDED AND RESTATED
OPERATING AGREEMENT OF
LIBERTY WASTE SERVICES OF ILLINOIS, L.L.C.
This Amended and Restated Operating Agreement (the Agreement) is executed as of
November 4, 1998, by Liberty Waste Services Limited, L.L.C., a Delaware limited liability
company (the Member), as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
articles of organization. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is Liberty Waste
Services of Illinois, L.L.C. (the Company). The name of the Company may be changed at any time
by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Illinois law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Illinois shall
be c\o CT Corporation System, 208 Lasalle St., Illinois, 60604. The registered office may be
changed to any other place within the State of Illinois upon the consent of the Member. The
Company may maintain a registered office in any state within which it does business at any
location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Illinois are: CT Corporation System, 208
Lasalle St., Chicago, Illinois 60604, Cook County. The Companys agent for service of legal process
may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Articles of Organization. The Member shall file any amendments to the articles of
organization deemed necessary by it to reflect the provisions of this Agreement or any amendments
to this Agreement adopted by the Member in accordance with the terms hereof. Upon the approval of
the articles of organization, or any amendments thereto, by the Member in accordance with this
Agreement, the Member or a designee of a Member shall be authorized to execute and file such
instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name of the sole Member is set forth in the heading of this
Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the
Company.
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member, in its sole discretion, may make loans (Member
Loans) to the Company, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
Unless otherwise required by the Code, all Profits, Losses and items thereof for each fiscal
year of the Company shall be allocated to the Member in full, disregarding the Company as a
separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company
and its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with
the defense of any action based on any such act or omission; provided, however, no Indemnified
Party shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 180/35-1(4) of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section
180/35-4 of the Act. The Company shall cease to carry on its business, except insofar as may be
necessary for the winding up of its business, but the Companys separate existence shall continue
until articles of dissolution are filed by the Illinois Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Articles of Dissolution. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all
of the remaining property and assets of the Company have been distributed to the Member,
articles of dissolution shall be executed and filed by the Member with the Secretary of State
of
Illinois.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.5 Illinois Law. The laws of the State of Illinois shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Illinois Limited Liability Company Act, as set forth in 805 111. Comp.
Stat. 180/1-1, et. seq., as amended from time to time (or any corresponding provisions of
succeeding law).
Agreement means this Amended and Restated Operating Agreement, as amended from time
to time. Words such as herein, hereinafter, hereof, hereto and hereunder, refer to this
Agreement as a whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company governed by this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
5
Member means any Person identified as a Member in the heading to this Agreement, or
any other Person admitted as a Member pursuant to the terms of this Agreement. Member refers
collectively to all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Liberty Waste Services Limited, L.L.C.,
a Delaware limited liability company
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By: |
/s/
D.W. Slager
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Its: President |
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6
exv3w620
Exhibit 3.620
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/07/1997
971005894 - 2703645 |
CERTIFICATE OF FORMATION
OF
WEST SUBURBAN RESOURCES & ENERGY CENTER, L.L.C.
A LIMITED LIABILITY COMPANY
FIRST: The name of the limited liability company is:
West Suburban Resources & Energy Center, L.L.C.
SECOND: The address of the limited liability companys registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THE UNDERSIGNED, being the individual forming the limited liability company, has executed,
signed and acknowledged this Certificate of Formation this 6th day of January, 1997.
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/s/ Cindy Sabish
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Cindy Sabish |
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Authorized Person |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/14/1997
971120888 2703645 |
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF FORMATION
OF
WEST SUBURBAN RESOURCES & ENERGY CENTER, L.L.C.
It is hereby certified that:
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The name of the limited liability company (hereinafter called the
limited liability company) it West Suburban Resources & Energy Center,
L.L.C. |
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2. |
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The Certificate of Formation of the limited liability company is
hereby amended by striking out Article One thereof and
substituting in lieu of said Article the following new Article: |
FIRST: The name of the limited liability
company is
West Suburban Recycling & Energy
Center, L.L.C.
THE UNDERSIGNED authorized officer has executed, signed and acknowledged this
Certificate of Amendment this 14th day of April, 1997.
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/s/ James J. Van Poppel
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James J. Van Poppel |
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Authorized Officer |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 04/24/1997
971134047 2703645
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CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF FORMATION
OF
WEST SUBURBAN RECYCLING & ENERGY CENTER, L.L.C.
It is hereby certified that:
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The name of the limited liability company
(hereinafter called the limited liability company) is West Suburban
Recycling & Energy Center, L.L.C. |
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2. |
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The Certificate of Formation of the limited
liability company is hereby amended by striking out Article One thereof
and substituting in lieu of said Article the following new Article: |
FIRST: The name of the limited liability company is
Liberty Waste Services of McCook, L.L.C.
THE UNDERSIGNED authorized officer has executed, signed and acknowledged this
Certificate of Amendment this 21th day of April, 1997.
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/s/ Jeffrey D. Kendall
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Jeffrey D. Kendall |
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Authorized Officer |
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exv3w621
Exhibit 3.621
AMENDED AND RESTATED
OPERATING AGREEMENT OF
LIBERTY WASTE SERVICES OF MCCOOK, L.L.C.
This Amended and Restated Operating Agreement (the Agreement) is executed as of
November 4, 1998, by Liberty Waste Services of Illinois, L.L.C., an Illinois limited
liability company (the Member), as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.6 hereof.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is Liberty Waste
Services of McCook, L.L.C. (the Company). The name of the Company may be changed at any time by
the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It
also is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall
be Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The
registered office may be changed to any other place within the State of Delaware upon the consent
of the Member. The Company may maintain a registered office in any state within which it does
business at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall file any amendments to the
Certificate of Formation deemed necessary by it to reflect the provisions of this Agreement or any
amendments to this Agreement adopted by the Member in accordance with the terms hereof. Upon the
approval of the Certificate of Formation, or any amendments thereto, by the Member in accordance
with this Agreement, the Member or a designee of a Member shall be authorized to execute and file
such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name of the sole Member is set forth in the heading of this
Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will
be deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled
to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member, in its sole discretion, may make loans (Member
Loans) to the Company, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the Member.
2
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
Unless otherwise required by the Code, all Profits, Losses and items thereof for each fiscal
year of the Company shall be allocated to the Member in full, disregarding the Company as a
separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the Company
shall be permitted to rely absolutely on the signature of the Member as binding on the Company,
without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
3
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a
4
certificate of cancellation shall be executed and filed by the Member with the Delaware Secretary
of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed
to refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.5 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any
corresponding provisions of succeeding law).
Agreement means this Amended and Restated Operating Agreement, as amended from time
to time. Words such as herein, hereinafter, hereof, hereto and hereunder, refer to this
Agreement as a whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.2 hereof.
5
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company governed by this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement, or
any other Person admitted as a Member pursuant to the terms of this Agreement. Member refers
collectively to all Persons who are designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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Liberty Waste Services of Illinois, L.L.C.,
an Illinois limited liability company |
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By:
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/s/ D. W. Slager |
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Its:
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Executive Vice President
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6
exv3w622
Exhibit 3.622
State of Delaware
Secretary of State
Division of Corporations
Delivered 11:57 AM 07/01/2003
FILED 12:00 PM 07/01/2003
SRV 030433990 3676817 FILE
CERTIFICATE OF FORMATION
LITTLE CREEK LANDING, LLC
Pursuant to § 18-201, Delaware Code Annotated, the undersigned states as follows:
1. Name. The name of the limited liability company (the Company)
formed by this instrument is Little Creek Landing, LLC.
2. Registered Office: Registered Agent. The address of its registered
office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Formation
to be duly executed as of the 30th day of June 2003.
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Allied Waste North America, Inc.,
a Delaware corporation,
Sole Member
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By: |
/s/ Peter S. Hathaway
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Peter S. Hathaway |
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Vice President |
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exv3w623
Exhibit 3.623
OPERATING AGREEMENT OF
LITTLE CREEK LANDING, LLC
This Operating Agreement is executed as of June 30, 2003, by Allied Waste North
America, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall
have the meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Little Creek Landing, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Delaware are The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware. The Companys agent for service
of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Delaware. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to
this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and
except as otherwise provided by the Act or by any other applicable state law, the Member shall be
liable only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall
not be required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and
items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
2
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers of
the Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend,
indemnify and save harmless the Member, its officers and directors, and the officers of the Company
(the Indemnified Parties) from and against all losses, claims, costs, liabilities and damages
incurred by them by reason of any act performed or omitted to be performed by them in connection
with the business of the Company, including attorneys fees incurred by them in connection with the
defense of any action based on any such act or omission; provided, however, no Indemnified Party
shall be indemnified from any liability for fraud, bad faith, willful misconduct or gross
negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment,
encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 18-802 of the Act.
3
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 18-803
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Delaware Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company,
the Member, or court-appointed trustee, if there is no remaining Member, shall take full account of
the Companys liabilities and assets, and such assets shall be liquidated as promptly as is
consistent with obtaining the fair value thereof. During the period of liquidation, the business
and affairs of the Company shall continue to be governed by the provisions of this Agreement, with
the management of the Company continuing as provided in Section 5 hereof. The proceeds from
liquidation of the Companys property, to the extent sufficient therefor, shall be applied and
distributed in the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Delaware Secretary of State.
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
4
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees
to perform all further acts and execute, acknowledge and deliver any documents which may be
reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Delaware Limited Liability Company Act, as set forth in Del. Code
Ann. Tit. 6, § 18-101, et. seq., as amended from time to time (or any
corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a
whole, unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
5
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to
the Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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6
EXHIBIT A
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Initial Capital |
Name and Address of the Member |
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Contribution |
Allied Waste North America, Inc.
15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260
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$ |
100.00 |
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exv3w624
Exhibit 3.624
CERTIFICATE OF FORMATION
OF
LOCAL SANITATION OF ROWAN COUNTY, L.L.C.
The undersigned, being over the age of 18 years and acting as sole organizer of a
limited liability company under the Delaware Limited Liability Company Act (the Act),
does hereby adopt the following Certificate of Formation for Local Sanitation of Rowan
County, L.L.C. (the Company).
ARTICLE ONE
The name of the limited liability company is Local Sanitation of Rowan County, L.L.C.
ARTICLE TWO
The address of the initial registered office of the Company in the State of
Delaware is c/o 1209 Orange Street, Wilmington, Delaware, 19801, and the name of its
registered agent for service of process required to be maintained by Section 18-104 of
the Act in the state is The Corporation Trust Company.
ARTICLE THREE
The adoption by the members of the Company of the Limited Liability Company
Agreement (LLC Agreement) of the Company shall bind all of the members of the Company
existing from time to time to the terms and provisions of such LLC Agreement (as such
terms and provisions may be restated or amended as provided therein), and the purchase
of or subscription for membership interests in the Company shall constitute an agreement
by any such member to be so bound, notwithstanding that any such
member has not executed a counterpart of such LLC Agreement or of any such restatements
of or amendments to such LLC Agreement.
ARTICLE FOUR
The name of the sole organizer is L.M. Wilson and the address of the organizer is
Mayor, Day, Caldwell & Keeton, L.L.P., 700 Louisiana, Suite 1900, Houston, Texas 77002.
IN WITNESS WHEREOF, I have hereunder set my hand this 14th day of December,
1998.
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/s/ L.M. Wilson
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L.M. Wilson, Organizer |
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:00 AM 12/15/1998
981483953 2983214
exv3w625
Exhibit 3.625
LOCAL SANITATION OF ROWAN COUNTY, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT is entered into as of December 18, 1998 by USA
Waste of Kentucky, L.L.C. (the Member).
1. Defined Terms. Unless the context requires otherwise, the defined terms used in
this Agreement shall have the following meanings:
LLCL shall mean the Delaware Limited Liability Company Act, as the same may be
amended from time to time.
Membership Interest shall mean the Members aggregate rights in the Company
including, without limitation, the Members share of the profits and losses of the Company, the
right to receive distributions from the Company and the right to vote or participate in management
of the Company.
2. Character of Business. The Company was formed for the purpose of engaging in
any lawful business, except any business in Delaware for which a statute other than the LLCL
specifically requires some other business entity or natural person to be formed or used for
such
business.
3. Principal Place of Business. The principal place of business of the Company shall
be at 1001 Fannin, Suite 4000, Houston, Texas 77002.
4. Fiscal Year. The Companys fiscal year shall be the calendar year.
5. Management of the Company. The business and affairs of the Company shall be
managed by the Member.
6. Capital Contributions. The Member shall make a contribution to the initial capital
of the Company in cash, property, services rendered or promissory notes or other obligations
to
contribute cash or property or to perform services.
7. Limited Liability of the Member. The liability of the Member shall be limited to
its capital contributions and the Member shall not be liable for any debt, obligation or
liability of
the Company.
8. Cash Distributions. The Company may distribute, at such times as determined by
the Member, such cash funds as are not necessary for the conduct of the Companys business.
9. Binding Effect. This Agreement shall be binding upon the Members heirs,
personal representatives, successors and assigns.
1
10. Applicable Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware without giving effect to its conflict of laws or
choice of law provisions.
11. Nature of Interest of Member. The interest of the Member in the Company is
personal property. The Member has no interest in specific property of the Company.
12. Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditors of the Company.
13. Effective Date. This Agreement shall be effective upon the formation of the
Company which shall be the date the certificate of formation is filed with the Secretary of
State
of the State of Delaware.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the date first above
written.
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USA Waste of Kentucky, L.L.C. |
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By:
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/s/ Bryan J. Blankfield |
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Name:
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Bryan J. Blankfield
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Title:
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Vice President & Asst. Secretary |
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2
exv3w626
Exhibit 3.626
FORM BCA-47 Initial License Fee $50
Franchise Tax $18,95
ARTICLES OF INCORPORATION
TO: ALAN J. DIXON, Secretary of State Clerk
The name and address of the incorporation are as follows
Name Number Street City State Zip Code
FRANK WARD 2401 South , Chicago, IL 60608
The above named incorporators, being one or more natural persons of the age of twenty-one years or
more or a corporation, and having subscribed to the shares of the corporation to be organized
pursuant hereto, for the purpose of forming a corporation under Tne Business Corporation Ad of
the State of Illinois, do hereby adopt the following Articles of Incorporation;
article one
The name of the top poul hereby incorporated is: LOOP RECYCLING, INC.
ARTICLE TWO The name and address of the registered agent and
Registered agent James L. Elsesser
Registered office 120 W. Madison
City, Zip code, County Chicago, IL 60602 Cook County
ARTICLE THREE The duration of the corporation is X perpetual OR years
ARTICLE FOUR
The purposes for which the corporation is organized are
Recycling of paper and related products
Recycle, redistribute , sale at retail & wholesale, exchange or trade, all production, including
but not limited to paper, wood, metal, glass, aluminum, & all other items related thereto.
ARTICLE FIVE
Paragraph I:
Total $1,000.00 |
Paragraph 2: The preferences, qualifications, limitations, restrictions and the special or relative
rights in respect of the shares of each class are
The stock to be issued is to be issued pursuant to a plan adopted by the corporation in accordance
with Section 1244 of the Internal Revenue Code.
ARTICLE SIX
The corporation will not commence business at least one thousand dollars has been received as
consideration for the issuance of shares.
ARTICLE SEVEN
The number of directors to be elected at the
ARTICLE EIGHT
Paragraph 1: It is estimated that the value ot all properly to be owned by the corporation for the
following year whenever located will be $
Paragraph 2: It is estimated that the value of the properly to be located within the State of
Illinois during
the following year will he i
Paragraph 3: It is estimated that the gross amount of business which will be transacted by the
corporation
during the following year will be $
Paragraph 4: It is estimated that the gross Amounf of business which will be transacted at or from
places of business in the State of Illinois during the following will be $
NOTE: If all the property of the corporation is to be located in this State and all of us business
to be transacted at or from places of business in this State, or the incorporators elect to pay the
initial franchise tax on the basis of its entire stated capital and paid in surplus then the
lormation called for in Article Eight need not be stated. The basis tor computation of franchise
taxes payable by domestic corporations is set forth in Section 132 of the Business Corporation Act.
We elect to pay the initial franchise tax on the basis of the entire
Stated capital and paid-in surplus
Signatures of incorporators:
NOTE: if a corporation acts as incorporator the
name of the corporation and the state of
incorporation shall be shown and the execution
must be by its President or Vice-President and
verified by him, and the corporate seal shall be
affixed and attested by its Secretary or an
Assistant Secretary.
As an incorporator, I declare that this document has been examined by me and is, to the best of my
knowledge and belief, true, correct and complete
RETURN TO:
Corporation Depart
Secretary of State
Springfield, Illinios Telephone |
Form BCA-14.35
(Rev. Jan. 1991)
George H. Ryan
Secretary of State
Department of Business Services
Springfield, IL 62756
Telephone (217) 782-6961
Remit payment in check or money order, payable to Secretary of State.
REPORT FOLLOWING MERGER OR CONSOLIDATION
FILED
SEP 30 1998
GEORGE H. RYAN
SECRETARY OF STATE
File # 5218-756-7
DO NOT SEND CASH
This space for use by
Secretary of State
Date 9/30/98
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Franchise Tax |
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$ |
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Filing Fee |
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$ |
5.00 |
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Penalty |
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$ |
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Interest |
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Approved: /s/ [ILLEGIBLE] |
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1. |
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CORPORATE NAME: Loop Recycling, Inc. |
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2. |
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STATE OR COUNTRY OF INCORPORATION: Illinois |
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3. |
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Issued shares of each corporation party to the merger prior to the merger: |
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Corporation |
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Class |
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Series |
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Par Value |
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Number of Shares |
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Loop Recycling, Inc. |
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common stock |
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NPV |
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1,000 |
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Draw Acquisition Company |
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Thirteen |
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common stock |
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$ |
0.01 |
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1,000 |
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4. |
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Paid-in Capital of each corporation party to the merger prior to the merger: |
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Corporation |
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Paid-in Capital |
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Loop Recycling, Inc. |
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$ |
1,000.00 |
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$ |
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Draw Acquisition Company Thirteen |
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$ |
10.00 |
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$ |
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$ |
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5. |
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Description of the merger: (Include effective date and a brief explanation of the
conversion as stated in the plan of merger.) |
See attached.
6. |
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Issued shares after merger: |
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Class |
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Series |
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Par Value |
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Number of Shares |
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common stock |
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NPV |
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1,000 |
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EXPEDITED
SEP 30 1993
SECRETARY OF STATE
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Paid-in Capital of the surviving or new corporation: $ 1,010.00 |
(Paid-in Capital replaces the terms Stated Capital and Paid-in Surplus and is equal to the total of these accounts.)
ITEM 8 MUST BE SIGNED
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The undersigned corporation has caused this statement to be signed by its duly
authorized officers, each of whom affirms, under penalties of perjury, that the facts stated
herein are true. |
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Dated September 21, 1998 |
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Loop Recycling, Inc. |
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(Exact Name of Corporation) |
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attested by
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/s/ Thomas K. Kehoe
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by
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/s/ D. W. Slager |
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(Signature of Secretary or Assistant Secretary)
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(Signature of President or Vice President)
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Thomas K. Kehoe, Secretary
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D. W. Slager, Executive Vice President |
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(Type or Print Name and Title)
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(Type or Print Name and Title) |
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Attachment to Report following Merger
On August 7, 1998, by virtue of the merger, the issued and outstanding shares of Draw Acquisition
Company Thirteen (Draw Thirteen) shall be converted into the same number of shares of Loop
Recycling, Inc. (Loop Recycling) the surviving corporation, and the issued and outstanding shares
of capital stock of Loop Recycling (Loop Recycling Common Stock) shall cease to be existing and
issued shares and shall become converted, without any action on the part of Loop Recycling or Draw
Thirteen or the Shareholders thereof, into shares of Allied Waste Industries, Inc. (Allied)*
common stock (Allied Common Stock), to be paid by Allied to the Loop Recycling Shareholders in
the manner and subject to the conditions set forth in the following sentence. At the Effective
Time, by virtue of the merger and without any further action on the part of Draw Thirteen, Loop
Recycling or the Loop Recycling Shareholders, each holder of Loop Recycling Common Stock shall be
entitled to receive in consideration for all of the shares of Loop Recycling Shareholders
respective ownership interest in Loop Recycling multiplied by the 10,583,891 shares of Allied
Common Stock to be issued pursuant to the Reorganization Agreement, subject to certain adjustments
provided for in the Reorganization Agreement.
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Allied is the parent of Draw Acquisition Company Thirteen |
exv3w627
Exhibit 3.627
AMENDED AND RESTATED BYLAWS
OF
LOOP RECYCLING, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Chicago, County of Cook, State of Illinois.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the State of Illinois as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and place, either within
or outside of the State of Illinois, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten (10) (unless a longer period is required by law) nor more than sixty
(60) days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority
of the capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven months from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 6 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the
stockholders, the Board of Directors shall appoint one (1) or more inspectors who shall ascertain
the number of shares outstanding and the voting power of each; determine the shares represented at
a meeting and the validity of proxies and ballots; count all votes and ballots; determine and
retain for a reasonable time period a record of the disposition of any challenges made to any
determination by the inspectors; certify the determination of the number of shares represented at
the meeting, and the count of all votes and ballots; and perform such other duties and actions as
may be requested by the Board of Directors or required by law. No such election inspector need be
a stockholder of the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of
Directors. The Corporations Secretary shall act as secretary of each meeting of the stockholders;
in the Secretarys absence, the chairman of the meeting may appoint any person (whether a
stockholder or not) to act as secretary for the meeting. Absent a showing of bad faith on his
part, and subject to any state law restrictions or requirements, the chairman of a meeting shall,
among other things, have absolute authority to fix the period of time allowed for the registration
of stockholders and the filing of proxies, to determine the order of business to be conducted at
such meeting and to establish reasonable rules for expediting the business of the meeting
(including any informal, or question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special
Meeting of the stockholders of the Corporation or by unanimous written consent of the
stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than six (6) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the Corporation.
3
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Illinois . Regular
meetings of the Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3)
directors. Notice thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from
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time to time, members of the Board of Directors of the Corporation, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors or such committee
by means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (i) the material facts as to his or
their relationship or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a
5
committee thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws,
as the same may be amended from to time. The officers of the Corporation need not be stockholders
of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier resignation or removal. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries and any bonuses or other compensation of
all officers of the Corporation shall be fixed by the Board of Directors. No officer shall be
prevented from receiving a salary by reason of the fact that such officer is also a director of
the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the
President or any Vice President, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from
time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates
6
and other instruments of the Corporation which may be authorized by the Board of Directors.
The Chairman of the Board of Directors shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him by these Bylaws or by the Board of
Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors, have general supervision of the business of the Corporation and shall see that
all orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of
Directors, or the President. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him by these Bylaws, the Chairman of the
Board of Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to
7
attest the affixing by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or, from time to time, when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the
Board of Directors, the President, any Vice President, if there are any appointed, or the
Secretary, and in the absence of the Secretary or in the event of his disability or refusal to
act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
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Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the
President or any Vice President and (ii) by the Secretary or Treasurer of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation
or its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such
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meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at the time when the same shall be deposited in the United States mail. Written notice
may also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words Corporate Seal,
Illinois. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those
by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set forth in Section 1
or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him
in connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
12
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Illinois for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Illinois, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the obligation to indemnify
him against
13
such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
14
exv3w628
Exhibit 3.628
JIM EDGAR
Submit in Duplicate Secretary of State
payment must make by Certified State of Illinois Date
Cashiers Check or or Money
Order payable to Secretary of ARTICLES OF INCORPORATION License Fee $
State Franchise DO NOT SEND CASH! Filing Fee
Pursuant to the provisions of The Business Corporation Act of 1983, the undersigned
incorporator($) hereby adopt the following Articles of Incorporation. ]
ARTICLE ONE The name of the corporation is LOOP TRANSFER, INCORPORATED
f Shall eon ft* the word corporation, company, Incorporated,
limited, or in abbreviation thereof)1
ARTICLE TWO The name and address of the initial registered agent and its registered
office are: Registered Agent James L. Elsesser
Same Middle Name K Last Same
Registered Office 120 W.Madison #1310.
Number Street Suite (A P.O. Box alone is not acceptable)
Chicago; Illinois 60602 Cook
5 City Zip Code Countries
"> ARTICLE THREE The purpose or purposes for which the corporation is organized are:
If not sufficient space to cover the point, add one or more sheets of this
size. One operation of a commercial waste transfer station and to manage, handle and deal with
waste, chemical or otherwise, and to acquire real end personal property for purposes
of perpetuating the business of the corporation
ARTICLE FOUR Paragraph J: The authorized shares shall be: ^
Clan Par Value per ;hare Number of share authorized
Common NO Par Value . Number Of shares authorized
2: The preferences, qualification*. limitations, restrictions and the special or relative
rights lhe respect of the shares of each claw are:
If not sufficient to«c<Mo cover this point.
As provided in the By-Laws of the Corporation or by separate Agreement.
ARTICLE FIVE The number of shares to be issued initially, and the consideration to be
received by this corporation therefor are
Par Value Number of Shares Consideration to be
Class per share proposed to be issued received therefor
Common No Par S 1.QQ0.00
A declaration as to a-par value optional. This space may marked n/a when no
reference to par value is desired. |
OPTIONAL
The number of directors constituting that initial board of directors of the corporation is one
and the names and addresses of the persons who serve as directors until that first of shareholders
or until their successors be elected and qualify are:
Name Residential Address
Cynthia L. Ward 3414 Wells TL 606*6
ARTICLE SEVEN OPTIONAL
(a) It is estimated that the value of all property to be owned by the corporation
for the following year wherever located will be: $ _
(b) It is estimated that the value of .he property to be located within the State
of Illinois during the following year will be: $ .
(c) It is estimated that the gross amount of business which will be transacted by the
corporation during the following year will be: $
(d) It is estimated that the gross amount of business which will be transacted from
places of business in the State of Illinois during the following were will be: $
ARTICLE EIGHT OTHER PROVISIONS
Attach a separate sheet of this size for any other provision to be included in the Articles of
Incorporation, e.g., authorizing pre-emptive rights: denying cumulative voting; regulating
internal affairs: voting majority requirements; fixing a duration other than perpetual; etc.
NAMES & ADDRESSES OF INCORPORATORS
The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements
made in the foregoing Articles of Incorporation are true.
Dated Signatures and Names Post Office Address
1.Signature Street
JAMES L. ELSESSER Chicago 3CQ.6..Q2
Name (pleat* print) City/Town Stmt* Zip
2. 2.Six nature Street
Name (please print) City To State Zip
3. 3. t Signature Street
Name (please print) City/Town State Zip
(Signatures must be in Ink on ordinal document. Carbon copy, Xerox or rubber stamp
signatures may only be conformed copies)
NOTE: If a corporation acts as incorporator, the name of the corporation and the state of
incorporation shall be shown and the execution shell be by Its President or Vice President by him,
and attested by its Secretary or an Assistant Secretary. |
Form BCA-14.35
(Rev. Jan. 1991)
George H. Ryan
Secretary of State
Department of Business Services
Springfield, IL 62756
Telephone (217) 782-6961
Remit payment in check or money
order, payable to Secretary of State.
REPORT FOLLOWING MERGER
OR CONSOLIDATION
FILED
SEP 30 1998
GEORGE H. RYAN
SECRETARY OF STATE
File # 5402-712-5
DO NOT SEND CASH
This space for use by
Secretary of State
Date 9/30/98
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Franchise Tax |
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$ |
|
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Filing Fee |
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$ |
5.00 |
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Penalty |
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$ |
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Interest |
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Approved:
/s/ [ILLEGIBLE] |
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1. |
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CORPORATE NAME: Loop Transfer, Incorporated |
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2. |
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STATE OR COUNTRY OF INCORPORATION: Illinois |
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3. |
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Issued shares of each corporation party to the merger prior to the merger: |
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Corporation |
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Class |
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Series |
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Par Value |
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Number of Shares |
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Loop Transfer, Incorporated common stock |
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NPV |
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1,000 |
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NR Draw Acquisition Company Fourteen common stock |
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$0.01 |
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1,000 |
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4. |
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Paid-in Capital of each corporation party to the merger prior to the merger: |
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Corporation |
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Paid-in Capital |
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Loop Transfer, Incorporated |
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$ |
1,000.00 |
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$ |
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Draw Acquisition Company Fourteen |
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$ |
10.00 |
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$ |
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$ |
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5. |
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Description of the merger: (Include effective date and a brief
explanation of the conversion as stated in the plan of merger.)
See attached. |
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6. |
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Issued shares after merger: |
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Class |
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Series |
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Par Value |
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Number of Shares |
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common stock
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NPV
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1,000 |
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7. |
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Paid-in Capital of the surviving or new corporation: $1,010.00 |
(Paid-in Capital replaces the terms Stated Capital and Paid-in Surplus and is equal to the total of these accounts.)
EXPEDITED
SEP 30 1993
SECRETARY OF STATE
ITEM 8 MUST BE SIGNED
8. |
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The undersigned corporation has caused this statement to be signed by its duly
authorized officers, each of whom affirms, under penalties of perjury, that the facts stated herein are true. |
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Dated
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September 21, 1998
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Loop Transfer, Incorporated |
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(Exact Name of Corporation) |
attested by
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/s/ Thomas K. Kehoe
(Signature of Secretary or
Assistant Secretary)
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by
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/s/ D. W. Slager
(Signature of President or Vice President) |
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Thomas K. Kehoe, Secretary
(Type or Print Name and Title)
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D. W. Slager, Executive Vice President
(Type or Print Name and Title) |
Attachment to Report following Merger
On August 7, 1998, by virtue of the merger, the issued and outstanding shares of Draw Acquisition
Company Fourteen (Draw Fourteen) shall be converted into the same number of shares of Loop
Transfer, Inc. (Loop Transfer) the surviving corporation, and the issued and outstanding shares
of capital stock of Loop Transfer (Loop Transfer Common Stock) shall cease to be existing and
issued shares and shall become converted, without any action on the part of Loop Transfer or Draw
Fourteen or the Shareholders thereof, into shares of Allied Waste Industries, Inc. (Allied)*
common stock (Allied Common Stock), to be paid by Allied to the Loop Transfer Shareholders in the
manner and subject to the conditions set forth in the following sentence. At the Effective Time, by
virtue of the merger and without any further action on the part of Draw Fourteen, Loop Transfer or
the Loop Transfer Shareholders, each holder of Tri-State Common Stock shall be entitled to receive
in consideration for all of the shares of Loop Transfer Shareholders respective ownership interest
in Loop Transfer multiplied by the 10,583,891 shares of Allied Common Stock to be issued pursuant
to the Reorganization Agreement, subject to certain adjustments provided for in the Reorganization
Agreement.
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* |
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Allied is the parent of Draw Acquisition Company Fourteen |
exv3w629
Exhibit 3.629
AMENDED AND RESTATED BYLAWS OF
LOOP TRANSFER, INCORPORATED
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Chicago, County of Cook, State of Illinois.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and outside of the State of Illinois as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and place, either within
or outside of the State of Illinois , as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Certificate of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to vote at such
meeting. Business
transacted at all Special Meetings shall be confined to the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Certificate
of Incorporation, as the same may be amended from time to time, the holders of a majority
of the capital stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven months from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the notice of the meeting,
or, if not so specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
2
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors shall appoint one (1) or more inspectors who shall ascertain the number of
shares outstanding and the voting power of each; determine the shares represented at a meeting and
the validity of proxies and ballots; count all votes and ballots; determine and retain for a
reasonable time period a record of the disposition of any challenges made to any determination by
the inspectors; certify the determination of the number of shares represented at the meeting, and
the count of all votes and ballots; and perform such other duties and actions as may be requested
by the Board of Directors or required by law. No such election inspector need be a stockholder of
the Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than six (6) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed with or without cause by the affirmative vote of a majority of the votes
entitled to be cast by the holders of all the then issued and outstanding shares of common stock of
the Corporation.
3
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the State of Illinois . Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any three (3) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram on twenty-four (24) hours notice, or on such shorter notice as
the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, as the same may be amended from
4
time to time, members of the Board of Directors of the Corporation, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications equipment through which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one (1) or more committees, each committee to
consist of two (2) or more of the directors of the Corporation. The Board of Directors may
designate directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required. The Board shall have the power at any time to change the members of any such committee,
to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
meetings, and shall receive such other compensation as determined by the Board of Directors from
time to time by majority vote.
Section 10. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer is present at or participates in
the meeting of the Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a
5
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors; and all officers of
the Corporation shall hold office until their successors are chosen and qualified, or until their
earlier resignation or removal. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries and any bonuses or other compensation of all
officers of the Corporation shall be fixed by the Board of Directors. No officer shall be prevented
from receiving a salary by reason of the fact that such officer is also a director of the
Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates
6
and other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President of the Vice Presidents if there are more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to
7
attest the affixing by his signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there is any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
8
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by him in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the
date of such
9
meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally or by electronic facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital
stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for
any proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish
any such reserve.
10
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words Corporate Seal,
Illinois. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation,
11
partnership, joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account of the Corporation
or another enterprise, or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Corporation or another enterprise. The term
another enterprise as used in this Section 4 of this Article VIII shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be.
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Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the State of Illinois for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination
in the specific case under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the director or
officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 of this Article VIII shall be given to
the Corporation promptly upon the filing of such application. If successful, in whole or in part,
the director or officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stock holders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Illinois , or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power or the obligation to indemnify him
against
13
such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed, in whole or in
part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided,
however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained
in the notice of such meeting of stockholders or Board of Directors, as the case may be. Except as
otherwise provided in the Certificate of Incorporation, all such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
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exv3w630
Exhibit
3.630
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Prescribed by J. Kenneth Blackwell
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Expedite this Form: (select one) |
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Ohio Secretary of State
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Mail Form to one of the Following: |
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Central Ohio: (614) 466-3910
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PO Box 1390 |
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Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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o Yes |
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Columbus, OH 43216 |
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*** Requires an additional fee of $100 *** |
www.state.oh.us/sos
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PO Box
670 o No Columbus, OH 43216 |
e-mail: busserv@sos.state.oh.us
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ORGANIZATION / REGISTRATION OF
LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
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(1) þ Articles of Organization for |
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(2) o Application for Registration of |
Domestic Limited Liability Company |
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Foreign Limited Liability Company |
(115-LCA) |
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(106-LFA) |
ORC 1705 |
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ORC 1705 |
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(Date of Formation)
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(State) |
Complete the general information in this section for the box checked above.
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Name
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Lorain County Landfill, LLC |
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o Check here if additional provisions are attached
* If box (1) is checked, name must include one of the following endings: limited liability
company, limited, Ltd, L.t.d., LLC, L.L.C.
Complete the information in this section if box (1) is checked.
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Effective Date (Optional)
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Date specified can be no more
than 90 days after date of filing. If a date is specified, the date must be a date on or after the date of filing. |
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(mm/dd/yyyy)
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This limited liability company shall exist for
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(Optional) |
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The address to which interested persons may direct requests for copies of any operating agreement and any bylaws
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Page 1 of 5
Complete the information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned authorized member, manager or representative of
Lorain County Landfill, LLC
(name of limited liability company)
hereby appoint the following to be statutory agent upon whom any process, notice or demand
required or permitted by statute to be served upon the limited liability company may be served. The name and address of the
agent is:
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C T Corporation System |
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1300 East 9th Street |
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Cleveland
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Ohio
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44114 |
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authorized representative
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/s/ Jo Lynn White |
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December 15, 2004 |
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Authorized Representative
Jo Lynn White
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Authorized Representative
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ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for
(name of limited liability company)
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hereby acknowledges and accepts the appointment of agent for said limited liability Company. |
PLEASE SIGN PAGE (3) AND SUBMIT COMPLETED DOCUMENT
Page 2 of 5
Complete the information in this section if box (2) is checked.
The address to which interested persons may direct requests for copies of any operating agreement and any bylaws
of this limited liability company is
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Jo Lynn White |
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(Name) |
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15880 N Greenway-Hayden Loop, Suite 100 |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Scottsdale
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Arizona
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85260 |
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The name under which the foreign limited liability company desires to transact business in Ohio is
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Lorain County Landfill, LLC |
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The limited liability company hereby appoints the following as its agent upon whom process
against the limited liability company may be served in the state of Ohio. The name and complete address of the agent is |
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C T Corporation System |
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1300 East 9th Street |
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland
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Ohio
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44114 |
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The limited liability company irrevocably consents to service of process on the agent listed
above as long as the authority of the agent continues, and to service of process upon the OHIO SECRETARY OF STATE if:
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the agent cannot be found, or |
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the limited liability company fails to designate another agent when required to do so, or |
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the limited liability companys registration to do business in Ohio expires or is
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REQUIRED |
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Must be authenticated (signed)
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by an authorized representative |
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/s/
Jo Lynn White |
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December 15, 2004 |
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(See Instructions)
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Authorized Representative
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Jo Lynn White |
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Page 3 of 5
exv3w631
Exhibit
3.631
OPERATING AGREEMENT OF
LORAIN
COUNTY LANDFILL, LLC
This Operating Agreement is executed as of 16th day of December, 2004, by Browning-Ferris
Industries of Ohio, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings
set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is Lorain County Landfill, LLC. The name of the Company may
be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the business of
solid waste management and disposal, and to engage in any other business or activity permitted
under Ohio law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate entity
for state law purposes, but be disregarded as an entity and operated in a manner consistent with
its treatment as a division of the Member for federal and state income tax purposes. It also is
the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Ohio shall be CT
Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114, County of Cuyahoga. The
registered office may be changed to any other place within the State of Ohio upon the consent of
the Member. The Company may maintain a registered office in any state within which it does business
at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Company in Ohio are CT Corporation
System, 1300 East
9th
Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be changed upon
the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of Formation is
filed in Ohio, and shall continue in perpetuity until the Company is dissolved as set forth in this
Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be filed in
the State of Ohio. The Member shall file any amendments to the Certificate of Formation deemed
necessary by it to reflect amendments to this Agreement adopted by the Member in accordance with
the terms hereof. Upon the approval of the Certificate of Formation, or any amendments thereto, by
the Member in accordance with this Agreement, the Member or a designee of a Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or other
assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make additional
Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities, contracts
or any other obligations of the Company. Except as agreed upon by the Member, and except as
otherwise provided by the Act or by any other applicable state law, the Member shall be liable only
to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed
to benefit any creditor of the Company, and no creditor of the Company will be entitled to require
the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which shall bear
interest and be repaid on such reasonable terms and conditions as may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and its
affairs shall be made or taken by the Member. Any party dealing with the Company shall be permitted
to rely absolutely on the signature of the Member as binding on the Company, without any duty of
further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons as
officers of the Company. The officers shall have the authority to act for and bind the Company to
the extent of the authority granted to them in resolutions adopted by the Member on behalf of the
Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify and save
harmless the Member, its officers and directors, and the officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all accounts,
books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise disposed
of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1
Dissolution. The Company shall dissolve upon the first to occur of any of the following
events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 1705.47 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 1705.44 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a certificate
of cancellation has been filed with the Ohio Secretary of State or until a decree dissolving the
Company has been entered by a court of competent jurisdiction.
(b) Liquidation
and Distribution of Assets. Upon the dissolution of the Company, the Member,
or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the Company
have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Ohio Secretary of State.
4
SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of the Member and its
heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to perform
all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to
masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
8.6 Ohio Law. The laws of the State of Ohio shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the meanings
specified in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Revised Code Chapter
1705, as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the net fair
market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less the
portion thereof used to pay or establish reserves for Company expenses, debt payments (including
payments on Member Loans), capital improvements, replacements and contingencies, all as determined
by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BROWNING-FERRIS INDUSTRIES OF OHIO,
INC., a Delaware corporation
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By: |
/s/ Jo Lynn White |
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Its: Secretary |
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6
EXHIBIT A
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Initial Capital |
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Name and Address of the Member |
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Contribution |
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Browning-Ferris Industries of Ohio, Inc.
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$ |
100.00 |
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15880 N Greenway-Hayden Loop
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Suite 100
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Scottsdale, AZ 85260 |
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exv3w632
Exhibit 3.632
CERTIFICATE OF INCORPORATION
OF
LOUIS PINTO & SON, INC., SANITATION CONTRACTORS
TO: THE SECRETARY OF STATE
STATE
OF NEW JERSEY
THE UNDERSIGNED, of the age of twenty-one years or over,
for the purpose of forming a Corporation pursuant to the provisions of Title 14A, Corporations, General, of the New Jersey
Statutes, do hereby execute the following Certificate of Incorporation:
FIRST:-
The name of the corporation is LOUIS PINTO & SON, INC., SANITATION CONTRACTORS.
SECOND:- The purpose or purposes for which the corporation is organized are:
(a) To engage in the business of
and to act as general contractors for garbage removal from private residences, publis buildings, factories, hotels, motels,
rooming houses, apartment houses, condominiums, country clubs,
private clubs, churches, temples, houses of worship of all denominations, all buildings and structures of all types.
(b) To act as general contractors,
builders, pavers, wreckers, concrete breakers and contractors;
and to improve and to raze, tear down, rebuild, repair, restore,
remodel, alter, fireproof, homes and buildings of every kind and
description and parts thereof and appurtenances thereto, and all
other structures.
(c) To acquire, by purchase, lease,
or otherwise, lands and interest in lands for the purpose of garbage dumping.
(d) To make estimates upon, bid
for, procure, perform, and carry out contracts for the use of
garbage as land fill, grading, draining, repairing or improving
in any manner, roads, streets, highways, and works of all kinds,
whether public or private.
(e) To manufacture, purchase,
rent, and dispose of all machinery, tools and apparatus necessary or convenient in and about the prosecution of its sanitation business and other related endeavors.
(f) To acquire, by purchase,
lease, or otherwise, lands and interests in lands, and to own,
hold, improve, develop, and manage any and all real estate so
acquired, and to erect, or cause to be erected, on any lands
owned, held, or occupied by the corporation, buildings, incinerators, or other structures, with their appurtenances, and to
manage, operate, lease, rebuild, enlarge, alter, or improve any
buildings, incinerators, or other structures, now or hereafter
erected on any lands so owned, held, or occupied, and to encumber or dispose of any lands or interests in lands, and any
buildings, incinerators, or other structures, and any stores,
shops, suites,rooms, or part of any buildings or other
structures, at any time owned or held by the corporation.
The foregoing purposes shall be
THIRD:- The aggregate number of shares which
the corporation shall have authority to issue is one hundred (100) shares without par value.
FOURTH:- The address of the corporations
initial registered office is 24 Commerce Street, Newark, New
Jersey 07102, and the name of the corporations initial
registered agent at such address is JOHN A. GONNELLA.
FIFTH:- The number of directors constituting
the initial board of directors shall be three (3) and the names
and addresses of the directors are as follows:
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NAMES |
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LOUIS PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
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JOHN PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
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MARIA FRANCES PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
SIXTH:- The names and addresses of the incorporators are as follows:
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NAMES |
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LOUIS PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
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JOHN PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
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MARIA FRANCES PINTO
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134 Telford Street |
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East Orange, New Jersey 07018 |
IN WITNESS WHEREOF, the undersigned, the incorporators of
the above names corporation, have hereunto signed this Certificate of
Incorporation on the
4th day of October, 1971.
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/s/ Louis Pinto
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[L. S.] |
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Signed, sealed
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LOUIS PINTO |
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/s/ John Pinto
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[L. S.] |
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and delivered
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JOHN PINTO |
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in the presence |
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of: |
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/s/ Maria Frances Pinto
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[L.S.] |
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MARIA FRANCES PINTO |
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/s/ John A. Gonnella |
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STATE OF NEW JERSEY :
SS.
COUNTY OF ESSEX :
BE IT REMEMBERED, that on this 4th day of October,
One Thousand Nine Hundred and Seventy-one, before me, the subscriber, An Attorney at Law of New Jersey, personally appeared
LOUIS PINTO, JOHN PINTO, and MARIA FRANCES PINTO, who, I am
satisfied, are the person named in and who executed the foregoing Certificate of Incorporation, and I having first made
known to them the contents thereof, they did severally
acknowledge that they signed, sealed, and delivered the same
as their voluntary act and deed for the purposes and uses
therein expressed.
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/s/ John A. Gonnella |
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JOHN A. GONNELLA |
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An Attorney at Law of New Jersey |
exv3w633
Exhibit 3.633
AMENDED AND RESTATED BYLAWS
OF
LOUIS PINTO & SON, INC., SANITATION CONTRACTORS
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be at such location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other
places both within and outside of the state of incorporation, as the Board of Directors may from
time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of
directors or for any other purpose shall be held at such time and place, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as may
properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, often percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be
given not less than ten (10) (unless a longer period is required by law) nor more than sixty (60)
days (unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of
Incorporation, as the same may be amended from time to time, the holders of a majority of the
capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30)
days (or any shorter period required by law), or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of
Incorporation or these Bylaws, as the same may be amended from time to time, (i) any question
brought before any meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat, and (ii) each stockholder
represented at a meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy but no proxy shall be voted on or after eleven (11) months from its date, unless such
proxy provides for and, applicable state law allows for, a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days (or any longer period required by law) before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days (or any
longer period required by law) prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting
2
during the whole time thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the
Board of Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the
stockholders shall be called to order and thereafter chaired by the Chairman of the Board of
Directors if there is one; or, if not, or if the Chairman of the Board is absent or so requests,
then by the President; or if the Chairman of the Board and the President are unavailable, such
other officer of the Corporation or such stockholder as may be appointed by the Board of Directors.
The Corporations Secretary shall act as secretary of each meeting of the stockholders; in the
Secretarys absence, the chairman of the meeting may appoint any person (whether a stockholder or
not) to act as secretary for the meeting. Absent a showing of bad faith on his part, and subject to
any state law restrictions or requirements, the chairman of a meeting shall, among other things,
have absolute authority to fix the period of time allowed for the registration of stockholders and
the filing of proxies, to determine the order of business to be conducted at such meeting and to
establish reasonable rules for expediting the business of the meeting (including any informal, or
question and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected either at an Annual or Special Meeting
of the stockholders of the Corporation or by unanimous written consent of the stockholders (or such
lesser percentage of stockholders as may be allowed by state law).
3
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board of Directors, who shall serve
one-year terms, consisting of not less than one (1) nor more than nine (9) directors, the exact
number of directors to be determined from time to time by resolution adopted by the affirmative
vote of a majority of the directors then in office. A director shall hold office until the next
Annual Meeting and until his successor shall be elected and shall qualify, subject, however, to
prior death, resignation, retirement, disqualification or removal from office. Directors of the
Corporation may be removed from the Board of Directors, with or without cause, subject only to
limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from
an increase in the number of directors may be filled by a majority of the Board of Directors then
in office, provided that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed
by or under the direction of the Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws, as the same may be amended from time to time, directed or
required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either outside of or within the state of incorporation. Regular
meetings of the Board of Directors may be held without notice at such time and at such place as may
from time to time be determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, if there is one, the President or any two (2) directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone,
electronic facsimile or telegram, not less than twenty-four (24) hours before the date of the
meeting, or on such shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law,
the Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, at
all meetings of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the act of a majority of the directors
present at any
4
meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, any action required or
permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Articles of Incorporation or these Bylaws, as the same may be amended from time to
time or limited by applicable state law, members of the Board of Directors of the Corporation, or
any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 of this Article III shall constitute presence in person at such
meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the
Board of Directors may, by resolution passed by a majority of the entire Board of Directors,
designate one (1) or more committees, each committee to consist of two (2) or more of the directors
of the Corporation. The Board of Directors may designate directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the absence of a designation
by the Board of Directors of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for
their reasonable out-of-pocket expenses incurred in connection with their attendance at Board
5
meetings, and shall receive such other compensation as maybe determined by the Board of Directors
from time to time by majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable
state law, no contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall, at a minimum, include a President and a Secretary. The Board of
Directors, in its discretion, may also choose a Chairman of the Board of Directors (who must be a
director), a Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as
the same may be amended from to time. The officers of the Corporation need not be stockholders of
the Corporation nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of
Directors; and all officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier
6
resignation or removal. Any vacancy occurring in any office of the Corporation shall be filled by
the Board of Directors. The salaries and any bonuses or other compensation of all officers of the
Corporation shall be fixed by the Board of Directors. No officer shall be prevented from receiving
a salary by reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there is one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all contracts,
certificates and other instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these Bylaws or by the
Board of Directors.
Section 5. President. The President shall, subject to the control of the Board
of Directors, have general supervision of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The President shall
execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and execute documents
when so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors,
or the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence
or in the event of his inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Executive Vice President, or if there is no Executive Vice President, the Vice
President or the Vice Presidents if there are more than one (in the order designated by the Board
of Directors) shall
7
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or
President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to
cause to be given notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board
of Directors, at its regular meetings, or, from time to time, when the Board of Directors so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
8
Section 9. Assistant Secretaries. Except as may be otherwise provided in these
Bylaws, Assistant Secretaries, if there are any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any Vice President, if
there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event of
his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation (i) by the President
or any Vice President and (ii) by the Secretary or Treasurer of the Corporation, certifying the
number of shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer
agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it
9
may be issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new
certificate to be issued in place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action (unless a greater or lesser period is required by applicable state
law). A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
10
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Unless otherwise
limited by applicable state law, written notice may also be given personally or by electronic
facsimile, telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the
Certificate of Incorporation or these Bylaws, as the same may be amended from time to time, to be
given to any director, member of a committee or stockholder, a waiver thereof in writing, signed,
by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, as the same may be amended from time
to time, if any, may be declared by a decision of a majority of the entire Board of Directors at
any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock of the Corporation. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors,
in its absolute discretion, may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3.
Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of
the Corporation, which shall have inscribed thereon the name of the Corporation, and the state and
year of its organization. The seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
11
Section 5. Gender. All words used in any gender in these Bylaws shall extend
to and include all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by
or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation
shall indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, (b) with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Corporation unless and only to
the extent that the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem
proper.
12
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under Section
3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records
or books of account of the Corporation or another enterprise, or on information supplied to
him by the officers of the Corporation or another enterprise in the course of their duties, or on
the advice of legal counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term another enterprise as used
in this Section 4 of this Article VIII
shall mean any other corporation or any partnership, limited liability company, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was serving at the
request of the Corporation as a director, officer, employee or agent. The provisions of this
Section 4 of this Article VIII shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director or officer may apply to any court of
competent jurisdiction in the state of incorporation for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standards of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in
the specific
13
case under
Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this
Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any
Bylaw, agreement, contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to
action in his official capacity and as to action in another capacity while holding such office, it
being the policy of the Corporation that indemnification of the persons specified in Sections 1 and
2 of this Article VIII shall be made to the fullest extent permitted by law. The provisions of this
Article VIII shall not be deemed to preclude the indemnification of any person who is not specified
in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation
to indemnify under the provisions of the applicable state law of the state of incorporation, or
otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the
provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs, executors and
14
administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated
to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to directors and officers of the Corporation.
15
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the
Certificate of Incorporation, or as otherwise provided in applicable state law, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders
or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the
Corporations Certificate of Incorporation shall be deemed to refer to its articles or certificate
of incorporation and all and any amendments thereto as of any given time on file with the
applicable state office of agency (or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state
law shall in all respects be considered senior and superior to these bylaws, with any inconsistency
to be resolved in favor of the Certificate or applicable state law, as the case may be, and the
Bylaws shall be deemed to be amended automatically from time to time to eliminate any such
inconsistencies which may then exist.
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exv3w634
Exhibit 3.634
CERTIFICATE OF INCORPORATION
OF
MACOMB LANDFILL, INC.
1. The name of the Corporation is Macomb Landfill, Inc. (the Corporation).
2. The address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at that address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL).
4. The Corporation shall have authority to issue one thousand (1,000) common shares, one cent
($0.01) par value.
5. The name and mailing address of the incorporator are as follows:
Steven M. Helm
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
The powers
of the incorporator shall terminate upon the filing of this Certificate of Incorporation.
6. The initial Directors of the Corporation and their respective addresses are as follows:
James S. Eng
Donald W. Slager
G. Thomas Rochford, Jr.
15880 North Greenway Hayden Loop
Suite 100
Scottsdale, Arizona 85260
7. In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors shall have the power to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
8. Elections of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
9. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute.
10. A director of the Corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
that the elimination or limitation of liability is prohibited under the DGCL as in effect when such
liability is determined. No amendment or repeal of this provision shall deprive a director of the
benefits hereof with respect to any act or omission occurring prior to such amendment or repeal.
11. Whenever a compromise or arrangement is proposed between the Corporation and its creditors
or any class of them and/or between the Corporation and its stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8
of the Delaware Code or on the application of trustees in dissolution or of any receiver or
receivers appointed for the Corporation under the provision of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization
of the Corporation, as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be, and also on the
Corporation.
IN
WITNESS WHEREOF, the undersigned incorporator has caused this Certificate of Incorporation
to be duly executed this 1st day of March, 2000
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/s/
Steven M. Helm
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Steven M. Helm, Incorporator |
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2
State of Delaware
Secretary of State
Division of
Corporations
Delivered 12.12 PM
01/06/2004
FILED 12:03 PM
01/06/2004
SRV 040006464
3186514 FILE
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
MACOMB LANDFILL, INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous written
consent of its members, filed with the minutes of the Board, adopted a resolution proposing
and declaring advisable the following amendment to the Certificate of Incorporation of said
corporation;
RESOLVED, that the Certificate of Incorporation of Macomb Landfill, Inc. be
amended by changing paragraph 1 thereof so that, as amended, said paragraph
shall be and read as follows:
1. The name of the corporation is Lucas County Land Development,
Inc. (the Corporation).
SECOND: That in lieu of a meeting and vote of stockholders, the stockholders have
given unanimous written consent to said amendment in accordance with the provisions of
Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable
provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware,
IN WITNESS WHEREOF, said Macomb Landfill, Inc. has caused this certificate to be
signed by Jo Lynn White, its Secretary, this
6th day of January, 2004.
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MACOMB LANDFILL, INC.
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By: |
/s/ Jo Lynn White
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Jo Lynn White, Secretary |
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exv3w635
Exhibit 3.635
BYLAWS
OF
MACOMB LANDFILL, INC.
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall be at such
location as the Board of Directors may from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such other places both
within and outside of the state of incorporation, as the Board of Directors may from time to time
determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or
for any other purpose shall be held at such time and place, as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
Section 2. Annual Meetings. The Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect Directors
in accordance with Section 1 of Article III of these Bylaws, and transact such other business as
may properly be brought before the meeting. Written notice of the Annual Meeting stating the place,
date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) (unless a longer period is required by law) nor more than sixty (60) days
(unless a longer period is required by law) before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
Articles of Incorporation, as the same may be amended from time to time, Special Meetings of
Stockholders may be called only by the Chairman of the Board, if there is one, the President, the
Board of Directors pursuant to a resolution adopted by a majority of the entire Board of Directors
(whether or not there exist any vacancies in previously authorized directorships at the time any
such resolution is presented to the Board of Directors for adoption) or by the owner or owners, at
the time of such call for a Special Meeting, of ten percent (10%), or more, of the issued and
outstanding shares of common stock of the Corporation. Written notice of a Special Meeting stating
the place, date and hour of the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) (unless a longer period is required by law) nor more than
sixty (60) days
(unless a longer period is required by law) before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at all Special Meetings shall be confined to
the objects stated in the call.
Section 4. Quorum. Except as otherwise provided by law or by the Articles of Incorporation, as
the same may be amended from time to time, the holders of a majority of the capital stock issued
and outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty (30) days (or any shorter
period required by law), or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required by law, the Articles of Incorporation or these
Bylaws, as the same may be amended from time to time, (i) any question brought before any meeting
of stockholders shall be decided by the vote of the holders of a majority of the stock represented
and entitled to vote thereat, and (ii) each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted
on or after eleven (11) months from its date, unless such proxy provides for and, applicable state
law allows for, a longer period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes
cast at such meeting shall be cast by written ballot.
Section 6. List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days (or
any longer period required by law) before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days (or any longer
period required by law) prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.
2
Section 7. Stock Ledger. The stock ledger of the Corporation shall be the only evidence
as to who are the stockholders entitled to examine the stock ledger, the list required by Section 6
of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
Section 8. Election Inspectors. Prior to any meeting of the stockholders, the Board of
Directors may appoint one (1) or more inspectors who shall ascertain the number of shares
outstanding and the voting power of each; determine the shares represented at a meeting and the
validity of proxies and ballots; count all votes and ballots; determine and retain for a reasonable
time period a record of the disposition of any challenges made to any determination by the
inspectors; certify the determination of the number of shares represented at the meeting, and the
count of all votes and ballots; and perform such other duties and actions as may be requested by
the Board of Directors or required by law. No such election inspector need be a stockholder of the
Corporation.
Section 9. Organization and Conduct of Meetings. Each meeting of the stockholders shall be
called to order and thereafter chaired by the Chairman of the Board of Directors if there is one;
or, if not, or if the Chairman of the Board is absent or so requests, then by the President; or if
the Chairman of the Board and the President are unavailable, such other officer of the Corporation
or such stockholder as may be appointed by the Board of Directors. The Corporations Secretary
shall act as secretary of each meeting of the stockholders; in the Secretarys absence, the
chairman of the meeting may appoint any person (whether a stockholder or not) to act as secretary
for the meeting. Absent a showing of bad faith on his part, and subject to any state law
restrictions or requirements, the chairman of a meeting shall, among other things, have absolute
authority to fix the period of time allowed for the registration of stockholders and the filing of
proxies, to determine the order of business to be conducted at such meeting and to establish
reasonable rules for expediting the business of the meeting (including any informal, or question
and answer portions thereof).
Section 10. Action by Written Consent. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected either at an Annual or Special Meeting of the
stockholders of the Corporation or by unanimous written consent of the stockholders (or such lesser
percentage of stockholders as may be allowed by state law).
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The business and affairs of the Corporation shall
be managed by or under the direction of a Board of Directors, who shall serve one-year terms,
consisting of not less than one (1) nor more than nine (9) directors, the exact
3
number of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office. A director shall hold office until
the next Annual Meeting and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal from office.
Directors of the Corporation may be removed from the Board of Directors, with or without cause,
subject only to limitation provided by law.
Section 2. Vacancies. Any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be
filled by a majority of the directors then in office, even if less than a quorum, or by a sole
remaining director.
Section 3. Duties and Powers. The business of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by
these Bylaws, as the same may be amended from time to time, directed or required to be exercised or
done by the stockholders.
Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular
and special, either outside of or within the state of incorporation. Regular meetings of the Board
of Directors may be held without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there is one, the President or any two (2) directors. Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, electronic facsimile or
telegram, not less than twenty-four (24) hours before the date of the meeting, or on such shorter
notice as the person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Quorum. Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.
Section 6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation or
these Bylaws, as the same may be amended from time to time, any action required
4
or permitted to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Articles of Incorporation or these Bylaws, as the same may be amended from time to time or limited
by applicable state law, members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications equipment through which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 7 of this Article III shall constitute presence in person at such meeting.
Section 8. Committees. Unless otherwise limited by applicable state law, the Board of
Directors may, by resolution passed by a majority of the entire Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more of the directors of the
Corporation. The Board of Directors may designate directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any such committee. In the
absence or disqualification of a member of a committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the absent or disqualified member, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board
of Directors when required. The Board shall have the power at any time to change the members of any
such committee, to fill vacancies and to discharge any such committee.
Section 9. Compensation. Directors shall be reimbursed by the Corporation for their reasonable
out-of-pocket expenses incurred in connection with their attendance at Board meetings, and shall
receive such other compensation as maybe determined by the Board of Directors from time to time by
majority vote.
Section 10. Interested Directors. Unless otherwise permitted in applicable state law, no
contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization
in which one or more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because the director or
5
officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee, in good faith, authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors
and shall, at a minimum, include a President and a Secretary. The Board of Directors, in its
discretion, may also choose a Chairman of the Board of Directors (who must be a director), a
Treasurer, an Executive Vice President and one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by the same person,
unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws, as the same
may be amended from to time. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. Election and Compensation. The Board of Directors, at its first meeting held after
each Annual Meeting of Stockholders, shall elect the officers of the Corporation, who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any vacancy occurring in any office of the Corporation shall be filled by the Board of
Directors. The salaries and any bonuses or other compensation of all officers of the Corporation
shall be fixed by the Board of Directors. No officer shall be prevented from receiving a salary by
reason of the fact that such officer is also a director of the Corporation.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the President or any Vice
President, and any such officer may, in the name of and on behalf of the
6
Corporation, take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of Directors, if
there is one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. The
Chairman of the Board of Directors shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws or by the Board of Directors.
Section 5. President. The President shall, subject to the control of the Board of Directors,
have general supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Bylaws, the Board of Directors, the Chairman of the Board of Directors, or
the President. The President shall also perform such other duties and may exercise such other
powers as from time to time may be assigned to him by these Bylaws, the Chairman of the Board of
Directors or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his absence or in the event
of his inability or refusal to act (and if there be no Chairman of the Board of Directors), the
Executive Vice President, or if there is no Executive Vice President, the Vice President or the
Vice Presidents if there are more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time may prescribe. If
there is no Chairman of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or books
7
to be kept for that purpose; the Secretary shall also perform like duties for the
standing committees when required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and shall perform such
other duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors
or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse
to cause to be given notice of all meetings of the stockholders and special meetings of the Board
of Directors, and if there is no Assistant Secretary, then either the Board of Directors or the
President may choose another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there is
one, shall have authority to affix the same to any instrument requiring it and when so affixed, it
may be attested by the signature of the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at its regular meetings, or, from time to time, when the Board of Directors
so requires, an account of all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in these Bylaws,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there are any appointed, or the Secretary, and in
the absence of the Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the Chairman of the Board of Directors, the President, any Vice President,
if there are any appointed, or the Treasurer, and in the absence of the Treasurer or in the event
of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other officer of the Corporation the power
to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by the President or any Vice
President and (ii) by the Secretary or Treasurer of the Corporation, certifying the number of
shares owned by the holder in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a transfer agent other than
the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 3. Lost Certificates. The President or Secretary may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have been lost, stolen
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or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed
by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney lawfully constituted in writing and upon
the surrender of the certificate therefor, which shall be canceled before a new certificate shall
be issued.
Section 5. Record Date. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action (unless a greater or lesser period is required
by applicable state law). A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Unless otherwise limited by applicable
state law, written notice may also be given personally or by electronic facsimile, telegram, telex
or cable.
Section 2. Waivers of Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws, as the same may be amended from time to time, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the time stated therein, shall
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be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, as the same may be amended from time to time, if
any, may be declared by a decision of a majority of the entire Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or in shares of the capital stock of the
Corporation. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors, in its absolute discretion, may modify or abolish any
such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
Section 4. Corporate Seal. The Board of Directors may provide for a seal of the Corporation,
which shall have inscribed thereon the name of the Corporation, and the state and year of its
organization. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 5. Gender. All words used in any gender in these Bylaws shall extend to and include
all genders.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings other Than Those by or in the
Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by reason of the fact
that he is or was a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation,
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partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person (a) did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, (b) with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions. Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific case.
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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or another enterprise,
or on information supplied to him by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or another enterprise
or on information or records given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert selected with reasonable
care by the Corporation or another enterprise. The term another enterprise as used in this
Section 4 of this Article VIII shall mean any other corporation or any partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 4 of this Article VIII shall not be deemed to be exclusive or
to limit in any way the circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to any court of competent jurisdiction
in the state of incorporation for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director or officer in
defending or investigating a threatened or pending action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Article VIII.
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Section
7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders
or disinterested directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions
of the applicable state law of the state of incorporation, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, limited
liability company, partnership, joint venture, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VIII.
Section 9. Survival of Indemnification and Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors
of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
14
ARTICLE IX
MISCELLANEOUS
Section 1. Amendment of Bylaws. Except as otherwise provided in the Certificate of
Incorporation, or as otherwise provided in applicable state law, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of
Directors, as the case may be. Except as otherwise provided in the Certificate of Incorporation,
all such amendments must be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Reference to Articles. Any reference herein made to the Corporations Certificate
of Incorporation shall be deemed to refer to its articles or certificate of incorporation and all
and any amendments thereto as of any given time on file with the applicable state office of agency
(or any successor thereto).
Section 3. Seniority. The Certificate of Incorporation and applicable state law shall in all
respects be considered senior and superior to these bylaws, with any inconsistency to be resolved
in favor of the Certificate or applicable state law, as the case may be, and the Bylaws shall be
deemed to be amended automatically from time to time to eliminate any such inconsistencies which
may then exist.
15
exv3w636
Exhibit 3.636
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Prescribed by J.
Kenneth Blackwell
Ohio Secretary of State
Central Ohio: (614) 466-3910
Toll Free: 1-877-SOS-FILE (1-877-767-3453)
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Expedite this Form:
(Select One)
Mail Form to one of the Following:
PO Box 1390
o Yes
Columbus, OH 43216
*** Requires an additional fee of $100 ***
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www. state.oh.us/sos
e-mail: busserv@sos.state.oh.us
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o No
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PO Box 670
Columbus, OH 43216 |
ORGANIZATION / REGISTRATION OF
LIMITED LIABILITY COMPANY
(Domestic or Foreign)
Filing Fee $125.00
THE UNDERSIGNED DESIRING TO FILE A:
(CHECK ONLY ONE (1) BOX)
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(1) |
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Articles of Organization for |
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Application for Registration of |
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Domestic Limited Liability Company |
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Foreign Limited Liability Company |
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(115-LCA)
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(106-LFA) |
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ORC 1705
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ORC 1705 |
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(Date of Formation)
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(State) |
Complete the general information in this section for the box checked above.
Name Lucas County Landfill, LLC
o Check here if additional provisions are attached
* If box (1) is checked, name must include one of the following endings: limited liability company, limited, Ltd, L.t.d., LLC, L.L.C.
Complete the Information in this section if box (1) is checked.
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Effective Date (Optional)
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Date specified can be no more than 90 days after date of filing. If a date is specified, |
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(mm/dd/yyyy)
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the date must be a date on or after the date of filing. |
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This limited liability company shall exist for
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(Optional)
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(Period of existence) |
The address to which interested persons may direct requests for copies of any operating agreement and any bylaws
of this limited liability company is
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(Optional) |
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(Name) |
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(Street)
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NOTE: P.O. Box Addresses are NOT acceptable. |
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(City)
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Page 1 of 5
Complete the Information in this section if box (1) is checked Cont.
ORIGINAL APPOINTMENT OF AGENT
The undersigned authorized member, manager or representative of
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Lucas County Landfill, LLC |
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(name of limited liability company) |
hereby appoint the following to be statutory agent upon whom any process, notice or demand required or permitted by
statute to be served upon the limited liability company may be served. The name and address of the agent is:
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C T Corporation System |
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(Name of Agent) |
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1300 East 9th Street |
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(Street)
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland
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Ohio
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44114 |
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(City)
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Must be authenticated by an
authorized representative
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/S/ Jo Lynn White |
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December 15, 2004 |
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Authorized Representative
Jo Lynn White
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Authorized Representative
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ACCEPTANCE OF APPOINTMENT
The undersigned, named herein as the statutory agent for
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(name of limited liability company) |
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hereby acknowledges and accepts the appointment of agent for said limited liability Company. |
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C T Corporation System |
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By: |
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(Agents signature) |
PLEASE
SIGN PAGE (3) AND SUBMIT COMPLETED DOCUMENT
Page 2 of 5
Complete the information in this section if box (2) is checked. |
The address to which interested persons may direct requests for copies of any operating agreement and any bylaws
of this limited liability company is
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Jo Lynn White |
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(Name) |
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15880 N Greenway-Hayden Loop, Suite 100 |
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(Street)
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Scottsdale
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Arizona
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85260 |
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(City)
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(State)
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The name under which the foreign limited liability company desires to transact business in Ohio is
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Lucas County Landfill, LLC |
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The limited liability company hereby appoints the following as its agent upon whom process against the limited liability
company may be served in the state of Ohio. The name and complete address of the agent is
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C T Corporation System |
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(Name) |
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1300 East 9th Street |
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(Street)
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NOTE: P.O. Box Addresses are NOT acceptable. |
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Cleveland
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Ohio
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44114 |
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(City)
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(State)
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The limited liability company irrevocably consents to service of process on the agent listed above as long as the
authority of the agent continues, and to service of process upon the OHIO SECRETARY OF STATE if:
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the agent cannot be found, or |
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the limited liability company fails to designate another agent when required to do so, or
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c. the limited liability companys registration to do business in Ohio expires or is cancelled. |
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REQUIRED |
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Must be authenticated (signed)
by an authorized representative
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Illegible |
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December 15, 2004 |
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(See Instructions)
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Authorized Representative
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Date |
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Jo Lynn White |
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Print Name |
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Authorized Representative
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Page 3 of 5
exv3w637
Exhibit
3.637
OPERATING AGREEMENT OF
LUCAS
COUNTY LANDFILL, LLC
This
Operating Agreement is executed as of
16th day of December, 2004, by Browning-Ferris
Industries of Ohio, Inc., a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Lucas County Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under Ohio law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a division of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Ohio shall be CT
Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114, County of Cuyahoga. The
registered office may be changed to any other place within the State of Ohio upon the consent of
the Member. The Company may maintain a registered office in any state within which it does business
at any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Ohio are CT Corporation System, 1300 East
9th Street, Cleveland, Ohio 44114. The Companys agent for service of legal process may be
changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Ohio, and shall continue in perpetuity until the Company is dissolved as set
forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of Ohio. The Member shall file any amendments to the Certificate of Formation
deemed necessary by it to reflect amendments to this Agreement adopted by the Member in accordance
with the terms hereof. Upon the approval of the Certificate of Formation, or any amendments
thereto, by the Member in accordance with this Agreement, the Member or a designee of a Member
shall be authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the Member are set forth on
Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no creditor of the Company will be entitled to
require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1
Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
Indemnified Parties) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise
disposed of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
3
(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 1705.47 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1
hereof, the Member may participate in the winding up of the Company as provided in Section 1705.44
of the Act. The Company shall cease to carry on its business, except insofar as may be necessary
for the winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Ohio Secretary of State or until a decree
dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the
Member, or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefor, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Ohio Secretary of State.
4
SECTION
8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 Ohio Law. The laws of the State of Ohio shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
Act means the Ohio Limited Liability Company Act, as set forth in Ohio Revised Code
Chapter 1705, as amended from time to time (or any corresponding provisions of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such
as herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
Company means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member
shall also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
Person means any individual, partnership, corporation, limited liability company,
trust or other entity.
Profits and Losses mean, for each fiscal year or other period, an amount
equal to the Companys taxable income or loss for such year or period, determined in accordance
with Code Section 703(a), reduced by any items of income or gain subject to special allocation
pursuant to this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such
regulations may be amended from time to time (including corresponding provisions of succeeding
regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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BROWNING-FERRIS INDUSTRIES OF OHIO,
INC., a Delaware corporation
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By: |
/s/ Jo Lynn White
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Its: Secretary |
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6
EXHIBIT
A
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Initial Capital |
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Name and Address of the Member |
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Contribution |
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Browning-Ferris Industries of Ohio, Inc. |
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$ |
100.00 |
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15880 N Greenway-Hayden Loop |
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Suite 100 |
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Scottsdale, AZ 85260 |
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exv3w638
Exhibit 3.638
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ARTICLES OF AMENDMENT TO THE LIMITED LIABILITY COMPANY
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Corporate Filings |
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312 Eighth Avenue North |
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6th Floor, William R. Snodgrass Tower |
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Nashville, TN 37243 |
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LIMITED LIABILITY COMPANY CONTROL NUMBER (IF KNOWN) 0470755
PURSUANT TO THE PROVISIONS OF §48-209-104 OF THE TENNESSEE LIMITED LIABILITY
COMPANY ACT, THE UNDERSIGNED ADOPTS FOLLOWING ARTICLES OF AMENDMENT
TO ITS LIMITED LIABILITY COMPANY:
PLEASE MARK THE BLOCK THAT APPLIES:
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þ AMENDMENT IS TO BE EFFECTIVE WHEN FILED BY THE SECRETARY OF STATE. |
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o AMENDMENT IS TO BE
EFFECTIVE
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(date) (TIME). |
(NOT TO BE LATER THAN THE 90TH DAY AFTER THE DATE THIS DOCUMENT IS FILED.) IF
NEITHER BLOCK IS CHECKED, THE AMENDMENT WILL BE EFFECTIVE AT THE TIME OF
FILING.
1. |
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PLEASE INSERT THE NAME OF THE LIMITED LIABILITY COMPANY AS IT APPEARS ON
RECORD: wilson County Development, LLC |
IF CHANGING THE NAME, INSERT THE NEW NAME ON THE LINE BELOW:
Madison County Development, LLC
2. |
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PLEASE INSERT ANY CHANGES THAT APPLY: |
STREET ADDRESS
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CITY
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STATE/COUNTY
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ZIP CODE |
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B. |
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REGISTERED AGENT: |
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C. |
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REGISTERED
ADDRESS:
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STREET
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CITY
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STATE
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ZIP CODE
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COUNTY |
3. |
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PLEASE COMPLETE THE FOLLOWING SENTENCE BY FILLING IN THE DATE AND BY CHECKING ONE OF THE TWO BOXES: |
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THE AMENDMENT WAS DULY ADOPTED ON
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October
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10 |
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2005 |
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BY THE |
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MONTH
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DAY
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YEAR
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o BOARD OF GOVERNORS WITHOUT MEMBER APPROVAL AS SUCH WAS NOT REQUIRED |
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þ MEMBERS |
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Assistant Secretary of Allied Waste North |
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/s/ Jo Lynn White |
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SIGNERS CAPACITY
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SIGNATURE |
America,
Inc., Sole Member |
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Jo Lynn White |
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NAME OF SIGNER (TYPED OR PRINTED) |
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SS-4247(REV.5/01)
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Filling Fee: $20.00
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RDA2458 |
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Directors / Officers Report
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As of 10/10/2005 |
AWIN Management, Inc.
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Directors |
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Donald W. Slager
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Director |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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James Edward Gray
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Director |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Thomas Patrick Martin
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Director |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Officers |
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Steven M. Helm
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Vice President |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, Arizona 85260 (United States) |
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Dale Leon Parker
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Vice President |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Donald W. Slager
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President |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Connie J. Gecich
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Assistant Secretary |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, Arizona 85260 (United States) |
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Thomas Patrick Martin
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Treasurer |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Jo Lynn White
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Secretary |
Primary Address:
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15880 N. Greenway Hayden Loop, Suite 100 |
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Scottsdale, AZ 85260 (United States) |
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Generated: 10/10/2005 3:12:20 PM
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Page 1 of 1 |
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ARTICLES OF
ORGANIZATION (LIMITED LIABILITY COMPANY)
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Corporate Filings |
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312 Eighth Avenue North |
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6th Floor, William R. Snodgrass Tower |
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Nashville, TN 37243 |
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The undersigned acting as organizer(s) of a Limited Liability Company under the provisions of the
Tennessee Limited Liability Company Act, § 48205101, adopts the following Articles of
Organization.
1. The name of the Limited Liability Company is:
Wilson County Development, LLC
(NOTE: Pursuant to the provisions of § 48207101, each limited Liability Company name must contain the words
Limited Liability Company or the abbreviation LLC or LLC)
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The name and complete address of the Limited Liability Companys initial registered agent and
office located in the state of Tennessee Is: |
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C T Corporation System |
(Name) |
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530 Gay Street
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Knoxville,
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TN 37902 |
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(Street Address)
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(city)
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(Statel Zip Code) |
3. |
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List the name and complete address of each organizer of this
Limited Liability Company. |
Jo Lynn White, 15880 N Greenway-Hayden Lp, Suite 100, Scottsdale, AZ 85260
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(Name)
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(Include: Street Address, City, State and Zip Code)
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(Name)
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(Street Address, City, State and Zip Code)
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(Name)
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(Street Address, City, State and Zip Code)
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4. |
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The Limited Liability Company will be: ( NOTE: PLEASE MARK APPLICABLE BOX)
o Board Managed þ Member Managed |
5. Number
of members at the date of filing
1.
6. If the document is not to be effective upon filing by the Secretary of State, the delayed effective date and time is:
Date na,
Time
(Not
to exceed 90 days.)
7. |
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The complete address of the Limited Liability Companys principal executive office is: |
15880 N
Greenway-Hayden Lp, Suite 100, Scottsdale. Arizona, United
States of America, 85260
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(Street Address)
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(City)
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(State/Country/ Zip Code) |
8. |
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Period of Duration: Perpetual |
10. |
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THIS COMPANY IS A NON-PROFIT LIMITED LIABILITY COMPANY (Check if applicable)o |
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May 28,2004
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/s/ Jo Lynn White |
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Signature Date
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Signature (manager or member authorized to sign by the Limited Liability Company) |
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Authorized Representative
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Jo Lynn White |
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Signers Capacity
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Name (typed or printed) |
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SS-4249 (Rev. 7/01)
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Filing Fee: $50 per member (minimum fee = $300, maximum fee = $3,000)
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RDA 2458 |
exv3w639
Exhibit 3.639
FIRST AMENDMENT TO
OPERATING AGREEMENT OF
MADISON COUNTY DEVELOPMENT, LLC
This First Amendment to Operating Agreement is executed as of July 5, 2006, by Allied Waste
North America, Inc., a Delaware corporation (the Member), as the sole member of the hereinafter
described Company.
SECTION 1. RECITALS
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1.1 |
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On May 27, 2004, the Member executed that certain Operating Agreement (the Original
Operating Agreement) as the sole member of Wilson County Development, LLC, a Tennessee
limited liability company (the Company). On June 1, 2004, the Member filed Articles of
Organization with respect to the Company with the Secretary of State of Tennessee. |
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1.2 |
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On October 13, 2005, the Member filed Articles of Amendment to the Articles of
Organization of the Company changing the name of the Company to Madison County
Development, LLC |
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1.3 |
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The Original Operating Agreement contains several inadvertent references to the State
of Alabama. |
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1.4 |
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Pursuant to Section 48-26-102(b) of the Tennessee Code Annotated, the Member
hereby votes to amend and amends the Original Operating Agreement as set forth herein. |
SECTION 2. AMENDMENTS
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2.1 |
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The word Alabama shall be deleted each place it appears in the Original Operating
Agreement and the word Tennessee shall be substituted therefore in each such place. |
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2.2 |
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The words Wilson County Development, LLC shall be deleted each place they
appear in the Original Operating Agreement and the words Madison County Development,
LLC shall be substituted therefore in each such place. |
SECTION 3. GENERAL PROVISIONS
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3.1 |
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The Original Operating Agreement, as amended hereby, will continue in full
force and effect. |
IN WITNESS WHEREOF, the Member has caused this First Amendment to Operating Agreement to be
executed on its behalf on the date first above written.
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ALLIED WASTE NORTH AMERICA,
INC., a Delaware corporation
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By: |
/s/ Jo Lynn White
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Jo Lynn White |
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Assistant Secretary |
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OPERATING AGREEMENT OF
WILSON COUNTY DEVELOPMENT, LLC
This Operating Agreement is executed as of May 27, 2004, by Allied Waste North America, Inc.,
a Delaware corporation (the Member) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the meanings
set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Certificate of Formation.
1.3 Name. The name of the Company is Wilson County Development, LLC. The name of the Company
may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the business of
solid waste management and disposal, and to engage in any other business or activity permitted
under Alabama law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate entity
for state law purposes, but be disregarded as an entity and operated in a manner consistent with
its treatment as a division of the Member for federal and state income tax purposes. It also is
the intent of the Member that the Company not be operated or treated as a partnership for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Alabama shall be CT
Corporation System, 530 Gay Street, Suite 204, Knoxville, Knox, Tennessee. The registered office
may be changed to any other place within the State of Alabama upon the consent of the Member. The
Company may maintain a registered office in any state within which it does business at any location
approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered agent for
service of legal process on the Company in Alabama are CT Corporation System, 530 Gay Street, Suite
204, Knoxville, Tennessee. The Companys agent for service of legal process may be changed upon the
consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of Formation is
filed in Alabama, and shall continue in perpetuity until the Company is dissolved as set forth in
this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be filed in
the State of Alabama. The Member shall file any amendments to the Certificate of Formation deemed
necessary by it to reflect amendments to this Agreement adopted by the Member in accordance with
the terms hereof. Upon the approval of the Certificate of Formation, or any amendments thereto, by
the Member in accordance with this Agreement, the Member or a designee of a Member shall be
authorized to execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the Member are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or other
assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make additional
Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities, contracts
or any other obligations of the Company. Except as agreed upon by the Member, and except as
otherwise provided by the Act or by any other applicable state law, the Member shall be liable only
to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed
to benefit any creditor of the Company, and no creditor of the Company will be entitled to require
the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (Member Loans) to the Company, which shall bear
interest and be repaid on such reasonable terms and conditions as may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses and items
thereof for each fiscal year of the Company shall be allocated to the Member in full, disregarding
the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and its
affairs shall be made or taken by the Member. Any party dealing with the Company shall be permitted
to rely absolutely on the signature of the Member as binding on the Company, without any duty of
further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons as
officers of the Company. The officers shall have the authority to act for and bind the Company to
the extent of the authority granted to them in resolutions adopted by the Member on behalf of the
Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the
Company will be entitled to such compensation for their services as the Member may determine
from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify and save
harmless the Member, its officers and directors, and the officers of the Company (the Indemnified
Parties) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all accounts,
books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or otherwise disposed
of without the consent of the Member. Any attempted transfer, assignment, encumbrance,
hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the following
events:
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(a) The sale of all or substantially all of the Companys assets and the collection of the
proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 10-12-38 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 10-12-39 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Companys separate existence shall continue until a
certificate of cancellation has been filed with the Alabama Secretary of State or until a
decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the Company, the Member,
or court-appointed trustee, if there is no remaining Member, shall take full account of the
Companys liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Companys property, to the extent sufficient therefore, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the Companys debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3
Certificate of Cancellation. When all debts, liabilities and obligations of the Company
have been paid and discharged or adequate provisions have been made therefore and all of the
remaining property and assets of the Company have been distributed to the Member, a certificate of
cancellation shall be executed and filed by the Member with the Alabama Secretary of State.
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SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term and
provision of this Agreement shall be binding upon and inure to the benefit of the Member and its
heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
83 Severability. Every provision of this Agreement is intended to be severable. If any term or
provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to perform
all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5
Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer
to masculine, feminine or neuter, singular or plural, as the identity of the Person or Persons may
require.
8.6 Alabama Law. The laws of the State of Alabama shall govern the validity of this Agreement,
the construction of its terms and the interpretation of the rights and duties of the Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the meanings
specified in this Section:
Act means the Tennessee Limited Liability Company Act, as set forth in Tennessee Limited
Liability Company Act § 48-205-101, as amended from time to time (or any corresponding provisions
of succeeding law).
Agreement means this Operating Agreement, as amended from time to time. Words such as
herein, hereinafter, hereof, hereto and hereunder, refer to this Agreement as a whole,
unless the context otherwise requires.
Capital Contribution means, with respect to any Member, the amount of money and the net fair
market value of property (other than money) contributed to the Company by such Member.
Certificate of Formation has the meaning given that term in Section 1.9 hereof.
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Code means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
Company means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
Member means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, Member shall
also be deemed to refer to such Person. Member refers collectively to all Persons who are
designated as a Member pursuant to this definition.
Net Cash Flow means the gross cash proceeds to the Company from all sources, less the
portion thereof used to pay or establish reserves for Company expenses, debt payments (including
payments on Member Loans), capital improvements, replacements and contingencies, all as determined
by the Member.
Person means any individual, partnership, corporation, limited liability company, trust or
other entity.
Profits and Losses mean, for each fiscal year or other period, an amount equal to the
Companys taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
Regulations means the Income Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
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ALLIED WASTE NORTH AMERICA, INC.,
a Delaware corporation
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By: |
/s/ Donald W. Slager
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Donald W. Slager |
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Vice President, Operations |
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EXHIBIT A
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Initial Capital |
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Name and Address of the Member |
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Contribution |
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Allied Waste North America, Inc. |
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$ |
100.00 |
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15880 N Greenway-Hayden Loop
Suite 100
Scottsdale, AZ 85260 |
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exv3w640
Exhibit 3.640
ARTICLES OF INCORPORATION
FOR
MANUMIT OF FLORIDA, INC.
The undersigned, desiring to form a corporation in accordance with Chapter 607,
Florida Statutes, the Florida General Corporation Act, adopts and files the following Articles
of Incorporation.
Article One
NAME
The name of this corporation shall be:
MANUMIT OF FLORIDA, INC.
Article Two
PRINCIPAL OFFICE OF CORPORATION
The street address of the principal place of business of the corporation is not known
at this time. The mailing address of the corporation shall be 22001 Hoover Road, Warren, Michigan
48089.
Article Three
PURPOSE
The corporation is formed for the purpose of transaction of any or all lawful business
for which corporations may be incorporated under Chapter 607, Florida Statutes.
Article Four
DURATION
The term of existence of the corporation is perpetual.
Article Five
ISSUANCE OF SHARES
The number of shares of stock that the corporation is authorized to have outstanding
at any one time is 1000 with a par value of $1.00 each.
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Article Six
REGISTERED AGENT
The location and address of the corporations initial registered office in Florida is 108 North
Magnolia Avenue, Ocala, Florida 34470. The initial registered agent at the registered office is
Stephen P. Lee.
Article Seven
INCORPORATOR
The name and street address of the incorporator to these articles of incorporation is:
Dominic Campo
22001 Hoover Road
Warren, Michigan 48089
Article Eight
INITIAL DIRECTORS
The name and street address of the initial director of the corporation is:
Dominic Campo
22001 Hoover Road
Warren, Michigan 48089
Article Nine
AMENDMENT
These articles of incorporation may be amended at any time in a manner now, or
subsequently permitted by statute Any change authorized by the holders of shares entitling
them to exercise the majority of the voting power of the corporation, or any greater number
that may then be required by statute, shall be binding on every shareholder of the corporation
as fully as if each shareholder had voted for the change.
In WITNESS WHEREOF the undersigned has signed these articles of incorporation
on this 8 day of July, 1993.
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/s/ DOMINIC CAMPO
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DOMINIC CAMPO |
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2
STATE OF FLORIDA
COUNTY OF MARION
The foregoing instrument was acknowledged before me this 8th day of July, 1993,
by DOMINIC CAMPO, who is personally known to me or produced
as identification and who did not take an oath.
My commission expires:
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Illegible |
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Notary Public - State of Florida |
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Illegible |
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Typed or Printed name of Notary |
ACCEPTANCE OF REGISTERED AGENT
OF
MANUMIT OF FLORIDA, INC.
Having been named to accept service of process for MANUMIT OF FLORIDA,
INC., at the place designated above in these articles of incorporation, I agree to act in this
capacity and agree to comply with the provisions of Section 48.091, Florida Statutes, as well
as all other statutes relating to the proper and complete performance of my duties. I am
familiar with and accept the obligations of my position as registered agent
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DATED this 8 day of July, 1993. |
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/s/ STEPHEN P. LEE
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STEPHEN P. LEE |
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